Mohd. Margub vs State of Himachal Pradesh

Dev Darshan Sud, J.—The appellant has challenged the judgment of the learned Sessions Judge, Mandi, sentencing him to undergo life imprisonment for offences under Sections 307, 326 and 324 of the Indian Penal Code (hereinafter referred to as ''IPC�). The appellant was charged for blinding, maiming and disfiguring PW-7 Mamta (hereinafter referred to as ''complainant�) who was assaulted by him in a brute savage and beastly manner by throwing Sulphuric acid on her because she had spurned his proposal for matrimony. In the assault which took place in the bus in which she was travelling after she had been stalked by the accused, not only complainant Mamta sustained serious injuries but other passengers also received grievous/simple acid burn injuries.

The prosecution case in brief is that on 27.5.2005 complainant, who was a student of B.A. 2nd year in Vallabh Government Collect, Mandi and was staying in a rented room in Samkhetar Mohalla in Mandi, had gone to fill up the form for training as a Patwari. She had proceeded at around 9.30 A.M. to collect her certificates/testimonials from her room, whereafter she went to the Government Senior Secondary School to get them attested from the Lecturer(s)/Teacher(s). She put all these documents in a poly carry bag and went to the Collector�s Office, Mandi to submit the form. She returned to her room at around 2.45 P.M. to pack up to go back to her village Drubbal. When she reached Mahajan Bazar, the accused blocked her path and propositioned her, asking her to marry him suggesting that she should elope with him. She protested and rebuked him telling him that she would report the matter to the police. The accused then snatched the poly bag from her hand containing her testimonials/ documents/certificates. She rushed to a nearby telephone booth for shelter and safety; phoned her brother Satinder PW-18, who informed her that she should remain in the phone booth till he reached there. He asked her to handover the phone to the PCO owner Smt. Nalini Behl PW-19 who talked to her brother and assured him that she would protect the complainant till he came there. At this juncture, the Mandi-Kotli bus, which was to go to the complainant�s village also, reached there and she boarded this bus No.HP-33-5577 driven by Dhian Singh PW-14, from the front gate. After the bus had covered some distance, it slowed down near Namdhari Music House to negotiate a curve. Here the accused also boarded the bus from the front door while the bus was moving. He was carrying a bottle wrapped in a paper. He approached her, uncorked the bottle and threw the contents on her head as a result she became unconscious and regained consciousness in Zonal Hospital, Mandi, where she was examined and referred to the Indira Gandhi Medical College and Hospital, Shimla, where she remained till 22.6.2005 and was thereafter referred to Safdarjung Hospital, New Delhi for better treatment and management. She was admitted there on 22.6.2005 and was discharged on 13.8.2005. She was brought back to the Indira Gandhi Medical College, Shimla on 14.8.2005, where she remained till 9.7.2006 on which date she was referred for medical examination to All India Institute of Medical Sciences, New Delhi. She was still under treatment when she appeared as a witness in Court.

The prosecution case is that at the time of the assault in which complainant Mamta suffered severe burn injuries on her head and face there was panic and pandemonium in the bus. Some of the passengers chased the accused who was nabbed and disclosed his name as Mohd.Margub. During this period a telephone call was made to Police Post City, Mandi that a boy had thrown acid on a girl which information was entered in daily diary No.21 Ex.PW. Thereafter Inspector Shamsher Singh PW-29 along with HC Muni Lal, Constable Dev Raj and Constable Suresh Kumar rushed to the spot and recorded the statement of PW-17 Manohar Lal, which was treated as one u/s 154 Cr.P.C. and a ruka was sent through Constable Suresh Kumar PW-24 for registration of a case in Police Station, Sadar on the basis of which FIR Ex.PAC was registered by HC Karan Singh PW-26. When the injured was taken to Zonal Hospital, Mandi, along with other injured occupants in the bus, Constable Muni Lal PW-25 moved an application Ex.PA for medical examination of Mamta and others injured in the attack.

PW-2 Dr. Shruti Thakur found the complainant Mamta unfit to make any statement as she found that the injured was not able to speak clearly on account of the severe burn injuries which she had received in the assault. According to her, injured complainant Mamta PW-7 had suffered simple and grievous injuries. She issued MLC Ex.PB. The clothes, namely, shirt Ex.P-2 and salwar Ex.P-3, which complainant Mamta was wearing at the relevant time, were sealed in a parcel Ex.P-1. On the same day, the doctor also examined other injured PW-8 Champa, whose injuries were recorded in the MLC Ex.PC. The doctor also took into possession shirt Ex.P-6, dupatta Ex.P-7 and under garments Ex.P-8 of the injured and sealed them in a parcel.

Dr. A.B. Gupta PW-3 had examined Mamta PW-7 and Champa PW-8. Other injured Baby Muskan was examined by this doctor who proved MLC Ex.PD. Shalu whose injuries were detailed in MLC Ex.PF, which injuries were opined to be grievous in nature.

Dr. Anuradha Sharma PW-4 examined Sheela and issued MLC Ex.PE and Muskan whose injuries were detailed in MLC Ex.PD. Dr. Navneet Chauhan PW-5 examined Puran Chand, also one of the injured in the assault and proved MLC Ex.PJ. He also examined the accused and proved MLC Ex.PF.

Dr. Sunil Thakur, PW-6, who is an Eye Specialist, examined Mamta and vide his MLC Ex.PD he recorded that her eye lids were hard with restricted mobility. According to his opinion Ex.PB, she suffered grievous injuries in the eyes. He also examined Muskan who was a child of 4 years and issued MLC Ex.PD.

After registration of the case, PW-29 Shamsher Singh investigated the matter. The accused was thereafter charged for offences under Sections 307, 324, 326 IPC.

The prosecution examined 32 witnesses in support of its case. The accused in his statement u/s 313 Cr.P.C. denied each and every incriminating circumstance put to him. He was arrested on 27.5.2005 at 6.30 P.M. There were communal riots in the town as assailant accused and Mamta injured belonged to different communities professing different religions. The accused examined Kewal Krishan DW-1 and Smt. Krishana Tandon, Chairperson State Human Rights Women Commission DW-2, in his defence. On conclusion of the evidence, the learned Court found the accused guilty not only for causing injuries to the complainant PW-7 Mamta, but also to the other passengers seated in the bus which included PW-8 Smt. Champa, PW-10 Smt.Sheela and a child of about six years of age, Baby Muskan.

The petitioner challenges the judgment on a number of grounds. He urges that there was no legally sustainable evidence on the record which would implicate him in the offence. He submits that in his statement u/s 313 Cr.P.C. that the only reason, why he was arrested on 27.5.2005, was that there were communal riots in the town. The prosecution has not examined or identified any person who had chased and caught him. There was no motive to commit the crime; there was no independent evidence to prove that he had snatched the complainant�s poly carry bag or that the bottle Ex.P-18, which he was carrying, contained Sulphuric Acid. In a nutshell, petitioner pleads total innocence and that he has been falsely implicated in the case.

We advert to the evidence on record. The most important witness is complainant PW-7 Mamta. She states every fact in clear and lucid terms describing the entire sordid saga of the dastardly attack by the accused. She has stated in vivid detail about how the accused, proposed to her that she should marry and elope with him and on her refusal and remonstration that in case he persisted with this behaviour she would report the matter to the police, on which he became infuriated. She then rushed to the phone booth of PW-19 Nalini Behl and made a phone call to her brother PW-18 Satinder informing him about the misconduct of the accused. At this, her brother asked her to stay in the PCO till he reached there. In the meantime, she boarded the bus going to her village and when it slowed down near a curve down the road, the accused also jumped into it from the front door, and splashed her with acid which he was carrying in a bottle. She then describes the trauma and medical treatment which she received at Mandi, in the Indira Gandhi Medical College and Hospital, Shimla, Safdarjung Hospital, New Delhi and All India Institute of Medical Sciences, New Delhi. She has been cross-examined at length by the defence in order to test the veracity of her testimony. We note that at the time when she was examined, the learned Judge records that her face was covered with a Dupatta (headscarf) and she was not in a position to stand properly. She was questioned about the details of the names of the persons etc. who had attested the form and who had received them etc. But, what we find is that despite lengthy cross examination, nothing material has been elicited from her to efface the veracity and consistency of the statement made by her describing the gory incident in detail identifying the accused and his role. She admits that she knew the accused as he was a tailor and she had visited his shop 2/3 times prior to the incident. He was carrying on his business at Samkhetar. She denied that DW-2 Krishna Tandon ever had any discussion with her or that she disclosed to this witness that she did not know the accused or that she had not seen him. She also denied the suggestion that the accused has been implicated by her only at the instance of the police.

We now turn to the evidence of the other witnesses before we refer to the medical evidence. PW-8 Champa was also one of the passengers in the bus in which attack took place. She says that after the bus had covered some distance and reached Namdhari Music House, the complainant PW-7 Mamta signaled the bus to stop and she boarded it. She sat in the seat in front of this witness. The bus started moving slowly and at this point, one boy (accused) boarded the bus who was carrying a green coloured bottle, opened it and threw its contents on the victim�s head. Some drops also fell on her hand and the other liquid fell on 2-3 other passengers. In all 7-8 persons were injured in the attack. There was commotion and pandemonium in the bus, during which this boy managed to escape. She was taken to the hospital, where she was medically examined and injuries recorded in Medico Legal Certificate Ex.PC; her clothes were taken into possession. Her shirt Ex.P-6, dupatta Ex.P-7 and vest Ex.P-8 were the same which she was wearing on the day of the attack. She also identified the clothes worn by victim Mamta at that particular point of time. She identified the bottle Ex.P-18 which was being carried by the accused on that day.

PW-10 Sheela, mother of injured Baby Muskan, who was aged about six years on the day of assault, also corroborates both the complainant and PW-8 Champa. She says that Muskan was in the lap of Shalu, her sister-in-law, who is also known as Usha Devi. She saw the injured complainant boarding the bus and when it reached near the curve near Namdhari Music Shop, the accused also jumped on to the bus which was travelling at a slow speed at that point of time. He was carrying a green coloured bottle, uncorked it and threw its contents on the head of complainant Mamta. Some drops fell on her, Shalu and Muskan. She also says that there was panic and commotion in the bus, taking advantage of this, the accused managed to escape. She was taken to the hospital and was medically examined and treated by the doctor and her injuries were recorded in Medico Legal Certificate Ex.PE and those of her daughter in Medico Legal Certificate Ex.PD. Shalu was also examined and her injuries were detailed in Ex.PF.

PW-18 Satinder Singh, brother of injured Mamta, states that on 27.5.2005, he received a telephonic call from her sister at around 3.00 P.M. on his mobile phone when she informed him that Mohammad Margub accused was teasing her and obstructing her from going home. He asked his sister to handover the phone to the owner of the PCO and told its owner PW-19 Nalini Behl to look after his sister as he was reaching there. He, thereafter, hired a taxi from Saigaloo where he had received the call and proceeded towards Mandi. When he reached near Kusum Theater in Mandi, he received a call on his mobile phone from Zonal Hospital Mandi informing him that his sister has been admitted there. He talked to her on the phone when she told him that the accused had thrown acid on her and she had suffered severe injuries. He reached the hospital in the van but his sister was in a critical condition and was not fit to make a statement. His sister was thereafter referred to the Indira Gandhi Medical College and Hospital, Shimla. She is totally blind, her face is totally disfigured and she has to bear the trauma of her disfigurement throughout her life. In cross-examination he corroborates the medical treatment received by her.

PW-19 Smt. Nalini Behl, owner of the PCO, states that on 27.5.2005 at around 3.00 P.M. a girl came to her PCO and started crying. She asked her what was the cause, she told her that one boy was teasing her. She learnt that the name of the girl was Mamta (complainant). She made a telephonic call to her brother with whom she also talked and told him to reach Mandi as his sister was being harassed and tormented by a boy. He told her that she should keep Mamta with her for sometime till he reaches there. After a short time a bus came there and that complainant told her that the bus is going to her village and she could travel in it. After sometime she says that she heard some commotion from the bus and lateron she learnt that Mamta had been severally injured in an acid attack.

PW-14 Dhyan Singh is the driver of the bus. He states that Hukam Chand was the conductor of the bus. On 27.5.2005 the bus started from Seri at round 3.10 P.M. for Kotli Kooon. When he reached near Namdhari Music House a girl signaled the bus to stop and she boarded it. When he slowed down the bus to negotiate a curve a boy boarded the bus which had slowed down and he could see this in the rear view mirror. After a few moments, there was commotion/shout in the bus and he stopped it immediately. He says that the boy was carrying bottle in his hand which was in green colour. He returned back, he saw the boy was pouring contents on the head of the girl. In this attack 9-10 other persons also sustained injuries. He identified the accused person in Court as the same boy who was involved in the attack. The accused fled from the bus leaving the bottle behind. The passengers joined by other people chased and caught him. He identified the bottle Ex.P-18 as the same which the accused was carrying.

PW-17 Manohar Lal, who was a passenger in the bus, states that he came to Mandi for some work. At around 3.15 P.M., he boarded the bus at Seri Munch Bus Stop and when it reached near Namdhari Music Shop, it was stopped for a moment and when it was moving slowly negotiating a curve, accused boarded the bus from the front door carrying a green coloured bottle in his hand. The accused uncorked the bottle and threw its contents on the head of the girl sitting on a seat ahead of him. He lateron came to know that the name of the girl was Mamta. Some drops of this acid fell on other passengers. There was chaos and commotion in the bus. Mamta had suffered grievous injuries and in this commotion, the accused managed to escape. His statement u/s 154 Cr.P.C. Ex.PV was recorded by the police.

PW-16 Swaran Singh, who runs a Karyana shop in Bhootnath Market, states that he deals with Sulphuric Acid. The accused was brought by the police to his shop and he identified him as a person who had purchased the Acid from him.

We now advert to the medical evidence. PW-1 Dr. Dhruv Dev Sharma was working in the Zonal Hospital, Mandi. He treated Mamta for burn injuries and stated that her statement was recorded on 29.5.2005. PW-2 Dr. Shruti Thakur was posted as Medical Officer in the same Hospital. She states that on 27.5.2005 an application Ex.PA was presented before her by the police for medical examination of Mamta, Prem Singh, Shankar Dass, Yog Raj, Roop Singh, Puran Chand, Bhoop Singh, Sheela Devi, Muskan, Usha Devi and Champa Devi. She recorded on this application that Mamta at Sr.No.1 of this application was unfit to make any statement. This noting was made at 6.00 P.M. Bhoop Singh and Rup Singh were opined by her to be fit to give their respective statements. She examined the complainant Kumari Mamta who had disclosed history of being assaulted with some corrosive fluid in an attack which occurred 15-20 minutes prior to the time when she was brought to the Hospital. She says that the victim was unable to speak. Her pulse was feeble and fast, Blood Pressure could not be recorded due to burn injuries. She found seven injuries on the victim namely:-

(i) Deep burns involving whole of scalp face and neck.

(ii) Deep burns involving both hands and arms extensively.

(iii) Deep burns involving right shoulder and breast along with nipple and scattered burns over the chest and upper back.

(iv) 2-3 patches of burns over the abdomen.

(v) Extensive burns over the anterior aspect and medial aspect of both thighs up to knee joints and scattered burns over the posterior and lateral aspect of both thighs.

(vi) Scattered burns over lower legs and feet. All the burns 1 to 6 grayish white, dry looking and well demarcated.

(vii) Eyelids of both eyes swollen with bilateral corneal haziness visible.

She drew a ski-gram, on the medical certificate, of the injuries on the victim and stated that there is a possibility that these injuries have been caused by acid. These injuries were sufficient to cause death and after consulting the report of the Surgical Specialist opined that they were grievous in nature within a probable duration of less than one hour and caused by an acid attack. She issued Ex.PB which is the Medico Legal Certificate and is self-explanatory. Surgical opinion Certificate shows that there were 45% to 50% deep burns which were dangerous to life. The victim was referred to Indira Gandhi Medical College and Hospital, Shimla for better treatment and management. The skigram shows that the entire body of the complainant both front portion and back was deeply scarred with burns. She then proves on record the clothes of the victim. She also examined Champa who was at that time aged about 15 years and found multiple small scattered spots on right side of forehead and burn patches over right upper deltoid area and posterior aspect of right elbow joint and posterior aspect of right forearm, burn patches over right leg anterior aspect and burn patches over left elbow region. The extent of burns was 5-10%. These injuries were recorded on Medico Legal Certificate Ex.PC. The report of the Chemical Analyst of the clothes of this victim concluded that they contained Sulphuric Acid. In cross-examination she stated that she gave the victim first aid before proceeding with the other treatment.

PW-3 Dr. A.B. Gupta was another doctor posted in the hospital and corroborates that the victim was admitted in the Surgical Ward having 45 to 50% deep burns and the patient was referred to Indira Gandhi Medical College and Hospital, Shimla. He also examined Kumari Champa for final opinion and stated that she has suffered burn injuries etc. Injured Baby Muskan was also examined by him and according to Ex.PD Medico Legal Certificate, this child had burn injuries causing disfiguration of her face and right portion of the chest. The nature of injuries was described on her as grievous. He rendered his expert opinion regarding the injuries sustained by Sheela wife of Pankaj, who is aged about 23 years, who had sustained injuries on her forearm being simple in nature which were recorded on Medico Legal Certificate Ex.PE. Similarly, he also proved the medical examination of Shalu, who was injured with post burn scarring forehead middle part, whole length of the nose, left side of the forehead, contracture philltrum region right side of lip, multiple scars whole length of right forearm (scattered) right lip, which injury, according to him, was grievous.

PW-4 Dr. Anuradha Sharma, who was a Medical Officer at Zonal Hospital, Mandi, states that she examined Sheela, Muskan, Shalu on the day of the alleged incident; she proved their Medico Legal Certificates Ex.PE. She states that Muskan was also examined by her, who was conscious but very irritable creating difficulties in examination. She also found injuries on the right chest wall, left arm, left scapular region and right chest. There was redness of the right eye and circum corneal congestion. He referred the child for expert surgical opinion. Injury No. 1 was opined by him to be grievous and according to the Chemical Analyst report Ex.PG, this was caused by Sulphuric Acid. She proved the Medico Legal Certificate Ex.PD. Shalu also had multiple injuries on her body as detailed by her in the Medico Legal Certificate Ex.PF. She identified the clothes of the victim which were taken into possession by her and lateron sent for medical (chemical) examination.

PW-5 Dr. Navneet Chauhan examined Prem Singh, whose injuries were recorded on Medico Legal Certificate Ex.PH. He had superficial deep burns on his face, right ear, right arm lateral aspect, left foot dorsal, left thigh medially, left forearm posterior aspect, right hand dorsum, Necros tissue over the burn sites surrounded by erythema and according to him these injuries were caused to him with Sulphuric acid. He examined Puran Chand whose Medico Legal Certificate is Ex.PJ. He was suffering from deep superficial burns on left side of his face and scalp, front of neck and his left leg.

Similarly, Shankar Dass was treated by him who was suffering from superficial burns over center of his upper chest as recorded by him in Ex.PK. The accused was also examined by him on 28.5.2005 and he found superficial deep burns on right forearm, left hand, left forearm, erythema over right knee, contusion over lower back, contusion over right scapula etc. In his cross-examination he states that the accused was examined by him in the police station as the atmosphere in the city was tense and surcharged.

PW-6 Dr. Sunil Thakur was the Eye Specialist in the Zonal Hospital, Mandi. He examined Mamta Complainant and Baby Muskan. He found extensive injuries on Mamta. He says that the cornea of both eyes was opaque and lusterless. In her right eye there was only perception of light and in her left eye she could count fingers from distance of one meter only. He opined that the injuries were grievous in nature and can be caused by acid.

PW-9 Dr. P.K. Soni of the Zonal Hospital, Mandi says that application Ex.PA was filed by the police for the examination of 11 injured persons including one Yog Raj son of Dev Raj, aged about 45 years, whom he examined at 6.40 P.M. in the evening and found that he had sustained the following injuries:-

Superficial burn on the back (left shoulder with blackish discolouration. Burn was 2%.

Burn injury with dark brown to blacking colour on the lateral aspect of left heel and adjacent lower leg lateral surface.

We now consider this evidence in the context of what has been alleged against the accused. We find that the evidence consists of the victims, who have all identified the accused. Starting with the main victim Mamta PW-7, the other injured witnesses; PW-10 Sheela, who was travelling in the bus and whose daughter Baby Muskan was injured in the attack, PW-14 Dhian Singh who was driver of the bus, PW-17 Manohar Lal, one of the passengers in the bus and has lodged the FIR, PW-18 Satinder Singh who is the brother of the victim, PW-19 Smt. Nalini Behl, the owner of the PCO, have corroborated each other on all material particulars with respect to the method and aftermath of the attack. All these witnesses have actually seen the victim boarding the bus, the accused approaching the victim and pouring acid on her in which as many as eleven persons, as mentioned in Ex.PA, received injuries. The evidence of the doctors considered by us supra is corroborative of the fact that the injuries were infact caused by assault with Sulphuric Acid. PW-16 Swaran Singh corroborates that the accused had bought Sulphuric Acid from his shop.

In his statement u/s 313 Cr.P.C., the accused has denied any participation in the crime. He says that he was implicated by the police who forcibly took his finger prints on a green coloured bottle. In response to question No. 29 asking him as to Why the witnesses had testified against him, his answer is, �I am a Muslim. It is a false case�. He then produces in defence two witnesses. DW-1 Kewal Krishan states that he is a supplier of Laboratory Equipments and Chemicals. He did not supply any Sulphuric Acid to PW-16 Swaran Singh in April/May, 2005, but in the month of March, 2005 he had supplied acid to him. He proved this sale vide Ex.D-1, which is the original cash memo, by which he had supplied Sulphuric and Nitric Acid to Swaran Singh PW-16. He identified bottle Ex.P-18 which was sold by him to Swaran Singh PW-16 and contained commercial acid with 25% strength. He admits that of all Acids, Sulphuric Acid is most harmful and when payment is made in cash, the signatures of the purchaser are not obtained on the bill and for this reason he has not obtained his signature as the payment was made to him in cash.

At this juncture, we also consider the evidence of DW-2 Smt. Krishna Tandon, Chairperson, State Commission for Women. She states that she was working in this capacity from September, 2006. In May, 2005, she was Member of the State Commission. She was not present on the day of occurrence at Mandi; next day she went to Zonal Hospital, Mandi, where Mamta was admitted and was not in a position to talk. In the capacity of Member of the State Commission she visited Indira Gandhi Medical College and Hospital, Shimla, where she met the victim Mamta twice and talked to her, her father and brother. There she was informed by them that they did not know the accused prior to the incident. She says that Mamta also told her that she did not know the accused prior to the incident. In cross-examination she says that Mamta�s face was totally disfigured and she told her that a boy had thrown acid on her face when she was travelling in a bus. It is this evidence which is the defence set up by the accused on which we have been called upon to judge the legality of the judgment and sentence imposed by the learned Sessions Judge.

The rules of appreciation of evidence are now well settled. In C. Magesh and Others etc. Vs. State of Karnataka, , where the Court holds:-

It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh vs. State of U.P. (2008) 16 SCC 686 has held: (SCC p. 704, para 14)

�21� The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; � the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.�

In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that �no man is guilty until proven so�. Hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.

In Paramjeet Singh @ Pamma Vs. State of Uttarakhand, , the Court has laid down the parameters of law on the standard of proof required to judge the guilt of an accused:-

Standard of Proof:

A criminal trial is not a fairy tale wherein one is free to give flight to one''s imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induces an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide : Kashmira Singh Vs. State of Madhya Pradesh, ; The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, Mousam Singha Roy and Others Vs. State of West Bengal, and Aloke Nath Dutta & Ors. v. State of W.B., (2007) 12 SCC 230).

In Sarwan Singh Vs. The State of Punjab, , this Court observed : (AIR p.645, para-12)

� � � �Considered as a whole the prosecution story may be true; but between ''may be true'' and ''must be true'' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence [before an accused can be convicted].

Thus, the law on the point may be summarised to the effect that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt.

It is these principles which we have to follow when we proceed to evaluate the evidence as also the conclusion which can legitimately be arrived at therefrom. We can at this juncture ignore even the communal card used by the appellant herein to urge that he has been falsely implicated only because of the religion which he professes. We indeed express our surprise as to how this ground has been urged as defence in the case, more especially, when we look into the totality of the evidence and find nothing communal in the savage attack perpetrated by the appellant herein. What we find from the evidence is that all witnesses have given a vivid and graphic narration of the incident complete in all details, of the manner in which the attack was planned and executed. Here is a young girl whose life has been ruined. She has been defaced, disfigured, blinded and has been left with a mental trauma deeper and greater than the physical injuries which she suffered.

We do not find any fault with the judgment of the learned Sessions Judge on the points of corroboration of the incident by (a) the eye witnesses and (b) the doctors who examined the victims. The injuries caused to the victims are grievous. Muskan, who was a young baby girl at that time, has also suffered grievous injuries. The other victims whose names are mentioned in Ex.PA have suffered grievous/simple injuries on their persons. Surely, all the victims could not have ganged up against the appellant to falsely rope him in a case even if we accept what he says that he was falsely implicated by the police as the situation of the town had turned serious on account of the religion of the victim as also of the assailant. We cannot find from the cross-examination of the witnesses who were injured or of the victim anything which would exonerate the appellant herein from wrong doing. We note that other facts on record, namely, that the victim had gone to the D.C. Office to apply for the training as a Patwari, for which purpose she was carrying a number of documents, stands corroborated by Ex.PN, which is seizure memo vide which documents of Mamta were taken into possession by the police from the house occupied by the accused Margub. These 18 documents were in a file and were found in one poly bag. It is witnessed by PW-11 Iqbal Singh who stood firm in his cross-examination that this recovery was infact made in his presence from the residence of the accused.

The evidence of HC Muni Lal PW-25 shows that the finger prints of the accused were taken on search slip forms Ex.PAA and Ex.PAB and were sent to the Finger Print Bureau at Phillaur, which in its report Ex.PAF proves that the thumb impression on Ex.PAA and Ex.PAB tallied with the finger prints on the bottle Ex.P-18. We note that this may not by itself be a conclusive piece of evidence, but when coupled with the acid found on the clothes of all the victims and the identification of the accused by the victim and passengers, it completes the chain of facts of his involvement in the entire incident. What we note at this juncture is that the bottle Ex.P-18 was taken into possession vide memo Ex.PQ and Dhian Singh PW-14, driver of the bus, identified this bottle. The clothes of Mamta, Muskan, Champa and the other injured witnesses were taken into possession by the police and sent for examination/analysis to the Forensic Science Laboratory at Junga. The report Ex.PG states that the clothes of all these injured, namely, Mamta, Muskan, Usha Devi and Champa Devi contained acid. We cannot accept the submissions made on behalf of the appellant that these finger prints are forcibly taken by the police as there is no cogent evidence in support of this contention.

On the defence evidence, we are guided by the judgment of the Supreme Court in Sanjiv Kumar vs. State of Punjab, (2009) 16 SCC 487, where the Court holds:-

We cannot lose sight of the principle that while the prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. The burden of proof lies on the prosecution in all criminal trials, though the onus may shift to the accused in given circumstances, and if so provided by law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the appellant is probable and true.

This principle was well established/settled in Aher Raja Khima Vs. The State of Saurashtra, where the Court holds that:-

Now it may be possible to take two views of this statement but there are two important factors in every criminal trial that weight heavily in favour of an accused person: one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions they should ordinarily be accepted unless the circumstances indicate that they are false.

What the appellant said in this case is not impossible; such things do happen and it is understandable that the police, frustrated in their endeavour to find the culprit among three other persons, should make an all out endeavour to make sure of the fourth. We do not say that that happened here.

But that it might have happened is obvious, and when the police absent themselves from the witness box and forestall attempts at cross-examination, we find it impossible to hold that a judge acting judicially, and bearing in mind the important principles that we have outlined above, can be said to have reached an unreasonable or an unfair conclusion when he deduces from these circumstances that there is a reasonable probability that the appellant''s story is true and that therefore the confession was not voluntary.

The defence witnesses are entitled to equal treatment as prosecution witnesses and Court should not distrust them, as has been laid down in Dudh Nath Pandey Vs. State of Uttar Pradesh, holding:-

Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant. We think not. The evidence led by the appellant to show that at the relevant time, he was on duty at his usual place of work at Naini has a certain amount of plausibility but that is about all. The High Court and the Sessions Court have pointed out many a reason why that evidence cannot be accepted as true. The appellant''s colleagues at the Indian Telephone Industries-made a brave bid to save his life by giving evidence suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory. We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. � � � � � � � The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. � � � � � � � �.

We need not multiply precedent as these principles have been reaffirmed in State of U.P. vs. Babu Ram, AIR 2000 SC 1735, State of Haryana Vs. Ram Singh, and Ouseph alias Thankachan vs State of Kerala, 2004 SCC(Cri) 1303. But, what we have to consider is the fact as to whether the accused has been able to probablise his defence either from the cross-examination of the witnesses or from the evidence which has been led on his behalf. On the first aspect all that we need say is that the non-participation in the crime stands negated by the evidence of the eye witnesses already noticed by us and the injuries corroborated by the medical evidence. On the second aspect, we have been unable to find anything in the defence evidence which exonerates him from all wrong doing. In fact, the submission made by him in his defence is one of falsity of the prosecution case. This requires to be rejected outright as we have noted.

Learned counsel appearing for the appellant has ably assisted us with the record of the entire evidence and to urge that even if the defence taken by the accused before the trial Court is ignored, there has been an improper appreciation of evidence as the learned trial Court has given a complete go by to the standard applicable for appreciation of evidence and the participation of the appellant is not established. We cannot find anything from the evidence which supports this contention of the appellant.

We now advert to consider the quantum of sentence. At the outset we note that no two circumstances and facts are alike and that it is not only the gravity of the offence but the facts and circumstances which have to be taken into consideration while sentencing. While doing so, it is not an emotional or a motivated response which this Court will take on the barbarity of the crime, but the settled judicial principles applicable and which have been crystallized in precedents. We do note in this case that not only the life of the victim been brutally marred, snuffing out the possibility of leading a normal life but quite a number of people including minors and co-passengers were at the receiving end of this assault. It is fortunate that they escaped with their lives, most of them carrying scars which are unlikely to heal for the rest of their life. We also note that the mental trauma of the victim can only be imagined rather than described in words and it is the totality of this scenario that we consider the principles to be applied.

If we are to look at the evidence even from the perspective of the defence, what is it that we called upon to adjudicate? Firstly the fact that the appellant-accused has been targeted only on communal basis. This is what we have been able to gather from his statement u/s 313 Cr.P.C. in which he says that the prosecution witnesses have spoken against him because he belongs to a different community and it is a false case. To another question, he says that he was arrested by the police at around 6.30/7.00 P.M. on 27.5.2005 as there were communal riots in the town and the case was fabricated against him. He buttresses his statement further by saying that his medical examination was conducted at the police station at which time it was crowded with police personnel, his person and clothes were stained in order to create a semblance of involvement to prove his participation in the crime. Secondly, the fact that the evidence of the prosecution negatives his participation in the crime. We need not repeat what we have already considered in the evidence above, but we notice with a twinge of sadness that the communal card is being used by him in order to wash off his hands of participation in the gory incident. We advert to the question of his participation and, to repeat, we find a very lucid and clear description given by the victim as also by those other witnesses who were travelling in the bus. In their cross-examination we do not find anything which would motivate them to lie against the appellant. We also find that the case set up of his involvement as being a scapegoat because the accused belongs to a different community, is not even probabilzed from his defence.

We now consider the precedent on sentencing. In Sudershan Kumar Vs. State of Delhi, , the Supreme Court was seized of a case u/s 300/302 IPC where the victim was subjected to an acid attack. In this case, one Maya Devi aged about 19 years and her mother Raj Kumari had taken to the profession of dancing and singing and used to live in an apartment on G.B. Road, Delhi. The accused developed illicit relations with the deceased and often used to go to the residence of the deceased. The accused wanted to marry Maya Devi, but she declined by saying that he is already married to another woman. A few days before the occurrence, the accused took the victim with him to his house where she stayed for about 12 days. When she returned to her residence he again asked her to marry him but she declined. On this she was threatened that he would kill her if she does not marry him and would teach her a lesson which she would remember for the rest of the life. On the fateful day, when the victim was sleeping on a cot with her son aged about one month, the accused entered her room holding a jug containing acid and a bottle which he poured on Maya Devi, her son and Raj Kumari. When the victim raised a hue and cry, he fled away from the scene of occurrence. He was tried and convicted for offences u/s 302 IPC and sentenced to imprisonment of life by learned Sessions Court which conviction was upheld by the High Court and in appeal, the Supreme Court affirming the judgment and sentence imposed by the learned trial Court. In Barati Vs. State of U. P., the accused had caused the death of the victim by pouring acid on her while she was sleeping. The Supreme Court upheld his conviction u/s 302 IPC.

In Keshav Dev Vs. State of U.P., , the victim wanted to develop illicit relations with a married lady, which was opposed by her husband, as she was complaining to him about this. She was brutally assaulted by the accused by pouring acid on her. She was admitted to hospital where she died. The conviction of the accused u/s 302 was affirmed by the Supreme Court.

We now refer to the law relied upon by the counsel appearing for the appellant. He places reliance on the judgment of the Supreme Court in Anil Kumar Pandey Vs. State of Uttar Pradesh, , to urge that the accused can be punished for offences under Sections 324 and 326 IPC as the Supreme Court had sentenced the accused in that case to undergo 14 months rigorous imprisonment. He then submits that the Court in Radhey Shyam vs. State of Uttar Pradesh, (2008) 14 SCC 558, reduced the sentence in an acid throwing case and keeping in view the fact that the incident took place 30 years ago, the appellant was directed to be released from jail.

Lastly, learned counsel for the appellant relies upon the decision of the Supreme Court in Bengai Mandal @ Begai Mandal Vs. State of Bihar, where the conviction of the appellant u/s 302 read with Section 34 IPC for causing the death of the victim who was assaulted with acid by the appellant in the middle of the night and she later on succumbed her injuries in the hospital was altered. In that case, the Court converted the conviction to one u/s 326 and Section 304 Part-II and accused was released on the sentence already undergone.

We also advert to a judgment of this Court in Criminal Appeal No. 244 of 1997, titled: State of H.P. vs. Ravi Dutt and Another, decided on 19th August, 2010 on the quantum of sentence therein. In this case the judgment of the learned trial Court was set aside by this Court in appeal. The offence involved is also that of acid throwing. This Court directed:-

In view of the facts and circumstances, the order dated 31.12.1996 of learned Additional Sessions Judge acquitting the accused-respondents, is not legally sustainable, therefore, the same is set aside. Accordingly, the convict shall be given opportunity to be heard on quantum of sentence. Let Non Bailable Warrants be issued, to procure the presence of the convict in the Court, returnable for 22nd September, 2010.

This Court then considering the entire facts and circumstances of the case sentenced the accused to undergo Simple Imprisonment for four years and a fine of Rs. 5000/- for offences u/s 307 IPC. Learned counsel urges that this being the established precedent of this Court the appellant cannot be visited with more serious consequences.

We have given our anxious thought on the question of both the credibility of the prosecution evidence as also the question of quantum of sentence. We observed at the threshold that no parity can be claimed on the question of sentencing as facts are different in every case. What we have to look for is any extenuating circumstance(s) which may call upon for the imposition of a lesser sentence.

The evidence of the victims and the doctors is so telling that the savagery and ferocity of the attack is writ large in the manner in which it was executed. The injuries on the victim, who has been crippled and blinded for life, do not require any description. The victim has been disfigured, crippled and traumatized for life which can well be imagined. Even a young child Muskan was not spared in the attack. The appellant was so consumed with the idea of entering into a relationship with the victim that he did not care either for her life or limb or for anybody else who was seated in the bus where he carried this attack after being spurned by the victim. We are unable to find any extenuating circumstances brought on the record which would prompt us to take a view different than that of the learned trial Court. The expert evidence is clear that the injuries caused to the victim were dangerous to life and in these circumstances, the conviction u/s 307 was proper.

We, therefore, hold that the learned Sessions Judge was right in holding the appellant guilty and convicting him for the offences charged. We uphold the sentence. We do place on record our appreciation for the learned counsel for the appellant who has ably assisted us both on the question of facts and law. We, therefore, find no merit in this appeal which is dismissed.