M/s. Parle Agro Private Ltd., & Anr. vs Madhya Pradesh Pollution Control Board (M.P.P.C.B.), through Dr. N.K. Verma

This appeal by the sole appellant is directed against the judgment dated 04.12.2006, passed by

First Additional Sessions Judge, Hoshangabad in S.T.

No. 252/2005, whereby appellant has been found

guilty for the offence punishable under Section 307 of

the Indian Penal Code and has been sentenced to life

imprisonment and fine of Rs.25,000/- and in default of

payment of fine, to further suffer rigorous

imprisonment for two years.

It is an undisputed and admitted fact that

injured Hemlata (P.W.-3) and appellant knew each

other since 1999 and were in constant contact and

used to long conversation on phone. Injured Hemlata

has been tying Rakhi to the appellant and they

treated each other as brother and sister. It is also not

disputed that the appellant not only gave a computer

to the injured for her own use but also taught her

computer.

According to the prosecution, on

10.04.2005, appellant invited Hemlata (P.W.-3) to

Palash Restaurant around 2-3 O''Clock in the afternoon,

on the pretext of giving her the admit card, however,

when she reached the hotel, he insisted and

pressurized her to marry him. When his proposal for

marriage was resisted and not accepted by Hemlata

(P.W.-3), he poured acid on her face and body and ran

away. It has been further alleged that injured Hemlata

ran out of the cabin and collided with waiter Ramdas,

who in this process also received some acid burns.

Someone from the restaurant had informed the police.

Sudhir Arjariya (P.W.-12), A.S.I., on receiving

information rushed to the place of incident, where he

found injured lying half conscious on the floor and

immediately took her to the district hospital,

Hoshangabad, where she was examined by Dr. Sudhir

Vijayvargiya (P.W.-1) and referred to Hameedia

Hospital, Bhopal and thereafter admitted in LBS

Hospital, Bhopal for further treatment, where she was

treated by Dr. Anand Kale (P.W.-6).

Dr. Sudhir Vijayvargiya (P.W.-1) and Dr.

Anand Kale (P.W.-6) had indicated that the injured

suffered total 45% burn injuries caused by acid, which

were sufficient to cause death, if not attended by

medical aid at appropriate time. Acid burns has

caused disfigurement to the face and body of the

injured and she had to undergo several corrective and

curative surgeries for her treatment.

Dehati Nalishi was recorded at the district

Hospital, Hoshangabad at about 4.00 P.M., on the basis

of the information supplied by the injured Hemlata

(P.W.-3). On the basis of Dehati Nalishi (Ex.P-3),

criminal law was set in motion. After completion of the

investigation, the accused was charged for committing

offences under Sections 326 and 307 of the Indian

Penal code. The appellant pleaded not guilty and was

tried for aforementioned offences. There were 12

witnesses examined on behalf of the prosecution.

Pradeep Vishwas (P.W.-5), who was witnessed to the

seizure has turned hostile.

The stand taken by the accused during the

trial was that he had always helped Hemlata (P.W.-3)

with computer and in getting a job and due to this

reason, Hemlata (P.W.-3) developed feeling for him. He

has further stated that she did not like her fiance and

wanted to marry him. When appellant refused her

advances and proposal, she threatened to pour acid on

herself. Appellant tried to stop her from doing so, and

in the scuffle, acid accidentally fell on her and some

got sprinkled on accused and the waiter Ramdas, who

also tried to take away the glass of acid from her. He

had examined four witnesses in his defence.

The trial Court after analysing the oral and

documentary evidence on record, has recorded a

finding against the appellant and sentenced him as

mentioned hereinabove. The trial Court has discarded

the evidence of the defence witnesses and has relied

only on the evidence of injured Hemlata (P.W.-3), who

was the victim of the acid pouring. The fact which

weighed heavily with the trial Court was the

disfigurement and pain suffered by the injured P.W.-3.

The reasoning for not believing the defence version

was that if P.W.-3 had wanted to die, she would be

considered a less painful and alternate method for

taking her life.

The learned counsel appearing for the

appellant submits that there is much contradictions

and omissions in the evidence of injured witness and

as such, ought not to have been relied upon by the

trial Court.

The learned counsel appearing for the

appellant, by taking this Court through the evidence of

P.W.-3 and P.W.-4 and their 161 statements, has

pointed out various omissions and contradictions in the

statement of these witnesses. It is submitted that

initially P.W.-3 has denied the fact that appellant had

gifted her the computer and giving her regular tuition,

whereas her mother Savitribai (P.W.-4) has admitted in

para 12 of her cross-examination that accused/

appellant used to come every day at 7 O''Clock to

teach computer to Hemlata (P.W.-3). It is pointed out

that though P.W.-3 had denied having regular phone

conversation with the accused but the call details

available on record, reflects otherwise.

Learned counsel further submits that the

prosecution has failed to examine the key witness,

Vibha Choure and waiter Ramdas, who also suffered

burn injuries in the incident and who could have

thrown light on the genesis of the incident and thus

has failed to prove the case beyond reasonable doubt.

Per contra, Shri Vaibhav Tiwari, the learned

Govt. Advocate for the respondent/State has submitted

that the Court below on the basis of analysis of

evidence of injured witness P.W.-3, as well as keeping

in mind the disfigurement suffered by P.W.-3, has

rightly held the appellant guilty of offence under

Section 307 of the I.P.C.

We have heard the learned counsel for the

parties at length and carefully and meticulously

perused the record of the trial Court and the evidence

adduced by the parties.

It is clear from the case diary statement

(Ex.D-1) of Hemlata (P.W.-3) that on 09.04.2005,

somebody called her fiance on his mobile to warn him

against her and she had doubt that it could only be the

appellant. On the same day, appellant informed her

that he had taken her admit card from the College and

asked her to come to Palash Restaurant to collect it,

which she refused and instead asked the accused to

deliver the admit card at her residence.

However, in the statement made in the

Court, Hemlata (P.W.-3) has stated that on 10.04.2005,

her friend Vibha Choure called her at 8 O''Clock in the

morning and asked her to go to Palash Restaurant to

meet the accused. She has further stated that though,

she had first refused to meet the accused, but

however, on the insistence of Vibha Choure, she went

to meet him at the restaurant. As per her own version,

she had sat in the restaurant for more than one and a

half hour, where, in between that time the appellant

went out of the restaurant twice. According to P.W.-3,

first time when the accused came back, he insisted

and pressurized her to marry him and threatened her

with knife and theremocol cutter. However, on her

asking, he gave the knife and theremocol cutter to her.

Thereafter, he went out again. After some time, when

he returned, he was hiding something in his hand and

asked her to go with him to one Pramod Tiwari''s house,

and on her refusal, he threw acid on her.

It is evident from the evidence of P.W.-3 that

she was extensively cross-examined on her

relationship with the appellant and his conduct and

behaviour. She has very consistently stated that prior

to the incident, behaviour of the appellant towards the

injured was brotherly and he had never given her any

reason for concern or alarm. She has also admitted

that earlier also 3-4 times, she had sat with the

appellant in the same cabin of Palash Restaurant, but

appellant never misbehaved or displayed his feelings

with her.

From analysis of the the evidence and the

case diary statement of injured P.W.-3, it is clear that

prior to the date of incident, behaviour of the appellant

towards P.W.-3 was brotherly and respectful and he

had never given her any reason for alarm or concern. It

is also evident that appellant was a regular visitor to

the house of Hemlata (P.W.-3), and taught her

computer, which is also corroborated by Savitribai

(P.W.-4), her mother in her cross-examination, wherein

she has stated that appellant comes every day at 7

O''Clock to teach computer to P.W.-3. Therefore, there

was no reason for the accused to call Hemlata (P.W.-3)

at Palash Restaurant for giving her the admit card, as

alleged, as he could have given it to the injured at her

residence, as asked.

Apart from this, once, when on 09.04.2005,

Hemlata (P.W.-3) has told the appellant to deliver the

admit card at her residence, there was no reason for

her to go to the restaurant on 10.04.2005 to collect the

same from the appellant. There also, she sat for more

than one and half hour, during which time, he not only

insisted and pressurized her to marry him but also

threatened to harm her with knife and thermocol

cutter. According to P.W.-3, appellant went out of the

restaurant twice but despite being threatened and

despite having ample opportunity to leave the place,

she admittedly kept sitting in the cabin and did not

raise any hue or cry for help, nor called anyone for

help, for the reasons best known to herself.

From the aforediscussed facts and the

conduct of the injured P.W.-3, it is clear that injured

Hemlata (P.W.-3) has not come out with whole truth

and concealed and suppressed the material facts. The

knife and the thermocol cutter used by the appellant

to threaten the injured P.W.-3, was not recovered from

the place of incident, but was seized from the injured

herself on 29.05.2005 at LBS hospital, Bhopal. As per

crime detail form (Ex. P-91), pieces of her clothes and

sandals were recovered from the place of incident, but

surprisingly she had kept the knife and thermocol

cutter with her all this time, even when she was

admitted in District Hospital, Hoshangabad and even

when she was shifted from Hoshangabad to Hameedia

Hospital and then to LBS Hospital, Bhopal.

Deepak Sontake (D.W.-1), who knew both,

appellant and injured Hemlata, has claimed to be an

eye witness and supported the story of appellant.

According to him, he was sitting in the restaurant,

when Hemlata came and sat in the cabin and

thereafter appellant came. He heard them arguing.

According to this witness, P.W.-3 was pressurizing the

appellant to marry her and threatened to kill him.

When he refused, she took out a bottle from her purse

and poured it in a glass and tried to pour it on herself.

Appellant and one waiter Ramdas who was serving,

tried to stop her and snatched the glass from her and

in this scuffle, some of the acid got sprinkled on them

also.

As per prosecution, P.W.-12 Sudhir Arjariya

(ASI), took the injured to the District Hospital,

Hoshangabad and recorded Dehati Nalishi (Ex. P-3) at

4 P.M., whereas, Dr. Sudhir Vijayvargiya (P.W.-1), who

has treated the injured (P.W.-3) has stated that

Hemlata was brought to the hospital at 4.30 P.M. by

one Murdidhar Hasani. P.W.-1 had stated that

Murlidhar Hasani and other persons, who had come

with Hemlata had informed him that Hemlata got

burned due to pouring of acid. This Muralidhar Hasani

has also not been examined by the prosecution. Apart

from this, P.W.-5 Pradeep Vishwas, witness of the

seizure memo has denied that the articles were seized

before him.

From a perusal of record, it is clear that the

prosecution has not examined the material witnesses,

who could have unfolded the genesis of the

prosecution case. Vibha Choure, who allegedly rang

up P.W.-3 Hemlata and forced her to go to the

restaurant to meet the accused was not examined.

Likewise, Ramdas, the injured waiter was not brought

before the Court. Though, it has come on record that

he was taken to the hospital for medical examination

by one Savita Ganjam (P.W.-10) for MLC. His shirt

(Article F) having acid marks and perforation, was sent

for examination to FSL, Sagar and was found having

acid stains on it. Apart from this, there must be other

persons present in the restaurant, who must have see

the incident, as it is unlikely that this activity would

have gone unnoticed by the persons present in the

restaurant and who took the injured to the hospital,

but none of them have been examined by the

prosecution.

On examination of the oral and

documentary evidence produced on record, it could

not be said with certainity, as to what were the

circumstances or the exact facts of the incident, but it

is doubtful that the incident took place in the manner

suggested by the injured (P.W.-3). The discrepancies,

omissions and contradictions in the evidence of injured

Hemlata (P.W.-3), in no circumstances are minor in

nature and is vital for disbelieving and discrediting her

evidence.

On account of the aforesaid contradictions

and omissions, we are of the considered opinion that

the statement of injured witness (P.W.-3) is not of

unimpeachable quality and in view of the several

lacunaes pointed out by us and the serious omission

and contradictions in the case diary statement and the

statements made before the Court and the case put up

by the prosecution, the story put up by the defence

sounds more plausible, contrary to the evidence of

injured witness, the benefit of doubt thereof must go to

the accused, considering the fact that he instead of

running away had immediately surrendered himself in

the police station as is evident from para 3 of

Bhupendra Singh (P.W.-11), S.I.

In the case of Rajiv Singh Vs. State of

Bihar (2015) 16 SCC 369, the Supreme Court has

held:

It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof". In unmistakeable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt.

The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh Vs. State of Rajasthan (2013) 5 SCC 722 as succinctly summarized in para 21 as hereunder :

"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ''may be'' proved and ''will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

In supplementation, it was held in affirmation of the view taken in Kali Ram vs. State of H.P . (1973) 2 SCC 808 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.

In view of the aforesaid facts and

circumstances of the case, we are of the considered

opinion that the impugned judgment dated 04.12.2006

passed in S.T. No. 252/2005 by the First Additional

Sessions Judge, Hoshangabad, cannot be sustained

and deserves to be and is hereby set aside. Giving

benefit of doubt, the accused/appellant is acquitted of

the alleged offence punishable under Section 307 of

the Indian Penal Code.

The appeal filed by the appellant is allowed.

The appellant be accordingly set free forthwith, if not

required in connection with any other case.