Kishori Nonia vs State of U.P.

A.N. Dikshita, J.—The Appellant, Kishori, has filed this criminal appeal against the judgment and order dated 17-10-1978 passed by Sri B.N. Mohiley, IInd Additional Sessions Judge, Mirzapur, in Sessions Trial No. A-176 of 1977, convicting and sentencing the Appellant u/s 302, IPC for imprisonment of life and u/s 302 IPC, for a period of seven years� rigorous imprisonment. Both the sentences were to run concurrently.

The prosecution story is that on the night between 20/21st August, 1977 around 1.30 a.m. Bijai, aged 12 years and Panna Lal alias Panaru, aged JO years, were sleeping in village Bharauhana, Police Station Kotwali Dehat, Mirzapur, on the same cot in front of their house. Their two sisters were also sleeping together on a cot nearby. A lantern was put in the Takhwa of the Dalan which was giving adequate light. Around 1.30 a.m. it is alleged that the Appellant threw acid on the two boys. However, more acid fell on the person of Bijai (deceased) while only a drop of acid fell on the body of Panna Lal alias Panaru. On account of the drops of this acid and on account of burning sensation caused to him he woke up and saw the Appellant and he enquired of the Appellant whom he called Kishori Chacha, though not directly related, (as the older persons are addressed as such) as to what the matter and why the acid was being thrown on his brother. The Appellant snubbed him to remain quiet failing which he too will be done to death. He repeated this thrice or four times to the Appellant as to what is the matter and why the acid is being thrown on his brother. However, the Appellant, in view of the above, threw acid on the person of Panna Lal alias Panaru and then ran away. Both started crying and then fainted. Bhullan PW. 3 and Sharda PW 4 saw this incident in the light of the lantern and torch. Sharda PW 4 tried to catch the Appellant but all the exercise to catch bold of the Appellant went in futility. The Appellant after running for a while jumped upon the wall of his house and went inside it. Bhullan immediately went to the field of Smt. Girja Devi PW 5 where the mother of Bijai and Panna Lal alias Panaru was irrigating her paddy crop. Sharda went to Allahabad to inform Kishori PW 6, the father of Bijai and Panna Lal alias Panuru. After the arrival of Smt. Girja Devi, mother of the two children, the two boys were taken to the Sadar Hospital, at Mirzapur. As the cot on which these two children were sleeping had burnt they were taken on another cot.

After reaching the hospital, Dr. V.P. Gupta, PW 1 examined Bijai (deceased) and Panna Lal alias Panaru on 21-8-1977 at 2.20 A.M. and 2.25 A.M. respectively. As the two children, Bijai and Panna Lal alias Panaru had been brought by their monther and few other persons of the same village and not by any police party. Dr. V.P. Gupta sent a memo to the Station Officer, Dehat Kotwali, Mirzapur. In this memo only this fact has been mentioned that two boys who are sons of| Kishore and residents of village Bharuhana, Police Station Kotwali Dehat, have been admitted in the hospital with burn-injuries. Nothing more was indicated therein.

This memo which was sent by Dr. V.P. Gupta PW 1 through Ward-boy (Nahd Kishore) who is a Sweeper also was received at the police station Kotwali Dehat at 11.10 A.M. on 21-8-1977. On the basis of this memo a case under Sections 326/307, IPC was registered. It may be significant to mention here that this report was against unknown person.

On 21-8-1977 at 11.10 A.M. S.I. Gorakh Nath Singh left for the hospital and returned for the police station at 11 30 A.M. The statements of Kishori, Bhullan, Sharda and the two sisters of the deceased were recorded on 21-8-1977, while the statement of Smt. Girja Devi was recorded on 22-8-1977. He visited the place of occurrence on that very day and prepared the site plam On 22-8-1977 at 8.00 A.M. Gorakh Nath Singh PW 7 started the investigation. When he came to know that Bijai is dead the case was accordingly converted into Sections 302/307 IPC.

The postmortem examination on the body of deceased, Bijai, was conducted by Dr. Har Charan Singh PW 8 on 22-8-1977 at 5.00 P.M. The following ante mortem injuries were found on the body of the deceased :

2nd degree burns on the face and forehead, excluding eye balls, on the nose, cheeks, lips and ears and around the eyes and neck on the front both shoulders on the front, arms both on the front and forearm both, both thighs, Inj. to knees, scrotum burnt whole and few spots on the penis, no blackening of skin scars soft and 2nd degree burn whole of chest on the front and upper part of abdomen on the back, lumber region both sides�.

In the opinion of the doctor death was caused due to shock and toxaemia as a result of acid burns. On 22-8-1977 the alleged dying declaration of Panna Lal alias Panaru was recorded by A.S.D.M. at 1.55 A.M. A certificate was appended by Dr. Deepak Bhargava that the patient was in a fit condition to make such a statement and although was in such a condition during the course of his statement. As regards the veracity of this dying declaration it will be discussed latter.

After necessary investigation a chargesheet was filed against the Appellant. On his denial to the charges he was put to trial and he was convicted and sentenced as stated above.

Hence this appeal.

Heard Learned Counsel for the Appellant, Sri G.S. Chaturvedi, assisted by Kamal Krishna and the learned Deputy Government Advocate for the State.

To buttress the prosecution version as many as ten witnesses were produced by the prosecution.

PW t Dr. V.P. Gupta, Medical Officer, District Hospital, Mirzapur, has stated that on the date of the incident he was posted in the said hospital and had examined the injuries of Bijai at 2.20 A.M. and Panna Lal alias Panaru at 2.25 A.M. on 21-8-1977. Both these children, Bijai and Panna Lal alias Panaru were brought by their mother, Smt. Girja Devi PW. 5. These two children were admitted in the hospital. PW 1 Dr. Gupta has stated that on the body of Bijai acid burn injuries on the head, neck, trunk and both extremities were present. The pulse was found 130 per minute low volume, while respiration was found 15 per minute, and temperature was 90 degree F. Burn-injuries were also found on the chest and abdomen. The patient was in a shock condition with low general condition All the injuries were mentioned in the bed-head ticket.

On that very day i.e. 21-8-1977 at 2.25 A.M. this witness also examined the injuries on the person of Panna Lal alias Panaru. He had found acid-burn injuries on the head, neck, trunk and both extremities. Pulse was 140 per minute with low volume. Respiration 16 per minute and temperature was 99 degree F. Injuries were found on the chest and other part of the body. All the injuries on the two persons were fresh and serious. Immediately after the admission of Bijai (deceased) and Panna Lal alias Panaru, police was informed as well as the Surgeon. This witness has stated that he did not enquire from the mother of the two children as to how the burn-injuries were received or who had caused such injuries. However, in his cross-examination he has stated that he does not know as to how many persons had brought the two children. He has sought refuge on the fact that it was not part of his duty to enquire as to how the injuries were received and who caused them True it cannot be part of duty of PW 1, Dr. V.P. Gupta, it was pragmatically incumbent upon him to have enquired this fact. He has stated that Bijai expired on 22-8-1977 at 8.00 A.M. Bijai (deceased) and Panna Lal alias Panaru were under the treatment of PW 1, Dr. V.P. Gupta. No doubt, this witness is of no avail to the prosecution version but no explanation is forthcoming as to bow the memo sent by him at 1.20 A.M. was received at the police station at 11.10 A.M. through Nand Kishore in this case neither Nand Kishore who took this memo has been examined nor interrogated by the Investigating Officer.

The prosecution has produced Panna Lal alias Panaru PW 1, Bhullan PW 3 and Sharda PW 4 as witnesses who had witnessed the incident. PW 2 Panna Lal as has been stated above has further stated that his father, Kishore PW 6, and Appellant were involved in the manufacturer ot utensils on wage basis. He has also stated that one Smt. Kalui was earlier married to his uncle, Ganesh, who had left him and had been kept by the Appellant as his wife. This witness has tried to evolve a story of indifference or acrimony between Kishori PW 6, his father and the Appellant. But with the same breath he has stated that such a quarrel arose during a joke. He has stated that at the time of the incident he was wearing half-pant while his brother Bijai (deceased) was wearing towel. The upper body was naked. He has stated that a drop of acid fell on his person but by that time as is revealed much acid had fallen on the body of Bijai. When the acid fell on the body he woke up and enquired from Kishori as to why he was doing so. Thrice or four times he enquired from the Appellant as to why he was throwing acid but by that time his brother had started crying. It was on such repeated enquiry that acid was thrown causing 70 percent burn-injury as was found by the doctor on the person of this witness. The manner in which the prosecution has tried to invoke the truthfulness of this witness has mitigated itself when the manner as shown by the prosecution is itself dubious If the Appellant on account of some motive wanted anihilate PW 6 Kishore�s family then it is wholly improbable that the acid would be thrown only on one person while the two are sleeping together on the same cot. Moreover, this witness has stated that the Appellant was holding a jar with a handle in which acid was kept and which was thrown. This jar was apparently quite big enough and it could contain 4-5 lotas of Pani (about two and a half liter). There cannot be any dispute that the mouth of the jar is too wide and if acid is thrown it will only isolate Bijai deceased and only a drop will fall on the person of this witness does not appear to be probable. Moreover it has come that some acid remained in the jar and the entire jar was not full. It was on account of repeated enquiry from the Appellant that the acid was thrown on this witness which caused the injuries. The witness admits that after receiving the injuries he fell on the cot and fainted. No doubt, this witness is aged only 10 years but the maimer in which the prosecution has tried to prove its case by putting into his mouth the name of the Appellant is highly suspicious and wholly doubtful. Much reliance cannot be placed on this witness as the testimony of this witness is highly suspicious.

PW 3, Bhullan and PW 4, Sharda, have supported the prosecution version and have stated that they saw the Appellant in the light of torch on hearing the shriks (of some one). Ia the light of the torch PW 3, Bhullan, saw Appellant holding a jar in his hand and throwing it on the person of Panaru who was on the cot where Bijai was sleeping. He enquired of the Appellant� as to what he was doing, to which he ran awaw. He met the Appellant near the house of Sharda where Sharda PW 4 tried to catch him but he ran away. PW 8 Bhullan has stated that when he reached the place of occurrence, the acid was already thrown on one boy while the Appellant was throwing on the other He has stated that he alongwith Sharda PW 4 ran to catch hold of the Appellant but he entered his house. He admits that more than 8-10 persons had reached the place. It is wholly surprising that after 8-10 persons of the village had assembled and Bhullan PW 3 and Sharda PW 4, having seen that acid was being thrown on the two boys, no effort was made by the villagers to surround and arrest the Appellant who admittedly had entered in his house. He has admitted that he had not gone to the hospital alongwith the children though he had gone 3-4 times to see them. He bad come to know about the death of Bijai, but he did not accompany the dead body. He has admitted that he met the father of the two children, Kishore, in the hospital on 21-8-1977 at 10.00 A.M. He had met the Sub-Inspector on 21-8-1977 in the morning. He has specifically stated that he had met the Sub-Inspector at 2.00 A.M. on that very day. It is very intriguing that this witness had seen the Appellant throwing acid on the two boys. He has also admitted that he had informed immediately after the incident when he had gone to call Smt. Girja Devi PW 5 that the Appellant had thrown acid on her two sons. But, as stated above, it intrigues the mind as to how the name of the Appellant was not spelled out as early as possible. No reliance can be placed on the testimony of this witness as it lacks in intrinsic worth. PW 4, Sharda, has also corroborated in the same breath the statement of PW 3, Bhullan. His testimony is also discarded on the same ground on which the testimony of Bhullan has been discarded.

PW 5 Smt. Girja Devi is the mother of the two boys. She has admitted that Bhullan had informed her in the field where she had gone to irrigate the paddy crop that Kishori had thrown acid on her sons. She has � admitted that she had gone to the hospital alongwith her two children on a rickshaw. She states that she did not meet any police man in the hospital-She has also stated that she did not talk to any doctor in the hospital and after the death of Bijai she left for home. It is surprising that her husband Kishore PW 6 reached the hospital at about 11.00 a.m. on the next day. It is contrary to human conduct that her two sons who were lying unconscious in the hospital would not be attended to or no effort would be made by her to reveal the truth as stated to her by PW 3, bhullan. Her statement had been recorded by the Investigating Officer on 22-8-1988. Admittedly the Sub-Inspector, Gorakh Nath Singh PW 7 had retched the hospital at 11:10 a.m. on 21-8-1977. This witness has stated that she had left for her village after the death of her son Bijai on 28-8-1977. It belies human conduct that this witness would not make any effort to attend to her son Bijai. It is also highly suspicious that the Sub-Inspector would not try to record the statement or even to enquire from this witness about the cause of the injuries and about the person who caused such injury. Her testimony does not inspire any confidence so as to incriminate the Appellant with the guilt.

PW 6 Kishore is the father of the two boys. He has set out a different story as regards the enmity that he had with the Appellant. He has stated that he accepted a job for Rs. 60/-. The Appellant was demanding Rs. 75/- from the employer. This acceptance of a lesser amount infuriated the Appellant and the employer refused him the job. As such the motive as has been attributed by the prosecution in itself is not believable as merely for Rs. 15/- a person would not go to annihilate the whole of the family. He had been informed by Sharda at Allahabad that the Appellant had thrown acid on his two sons. He admits having reached the hospital at 10.00 a.m. on the same day at 1.00 p.m. However, till 21-8-1977 the name of the Appellant was not revealing. He has denied having any quarrel with the Appellant. However, such reliance cannot be placed on the testimony of this witness. It lacks in intrinsic worth and lacks in intent and in spirit.

PW 7, Gorakh Nath Singh, is the Investigating Officer. It appears that the investigation started with promptitude on 22-8-1977 when Bijai had expired on 21-8-1977 he met Kishore, father of the two boys. It is wholly unnatural that Kishore, who by then had named the Appellant, would not reveal to the Investigating Officer. It is thus apparent that the investigation in this case had not been upright. He did not even interrogate the Ward-boy (Nand Kishore).

PW 10, Deepak Bhargava was posted at the Sadar Hospital, Mirzaour. He has stated that on 22-8-1977 he had certified that Panna Lal alias Panaru was in a fit condition to give his dying declaration. Such a dying declaration is alleged to have been recorded by some A.S.D.M. at 1.52 p.m. on 22-8-1977. Muchless said the better about this dying declaration which is alleged to be dying declaration. It has over-writings as regards the age of the boy in a different ink. Further the certificate given by the A.S.D.M. is of 22-8-1977 regarding the recording of the dying declaration. This again is in a different ink and apparently was not written on the date when this statement was recorded on 22-8-1977 at 2.25 p m. as alleged. This statement is of no avail to the prosecution.

In view of the above the prosecution has failed to bring home the guilt to the Appellant.

In the result the appeal succeeds and is allowed. The conviction and sentence of life imprisonment, as stated above, are set aside. The Appellant is on bail. His bail bonds are discharged.