SHARMA, J. - (1.) THE appellant was the accused on the file of learned Additional Sessions Judge No. 5 Kota bearing Sessions Case No. 67/2000. Learned Judge vide judgment dated May 11, 2001 convicted and sentenced the appellant as under:- U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 5000/- in default to further suffer six months rigorous imprisonment. U/s. 324 IPC: To suffer rigorous imprisonment for two years and fine of Rs. 3000/-, in default to further suffer rigorous imprisonment for six months. THE sentences were directed to run concurrently.
(2.) THE prosecution story is woven like this. On August 22, 1997 at 6. 15 P. M. informant Indra Kumari went to Police Station Kaithoni Pole Kota accompanied by her brother Gordhan Lal and submitted a written report to this effect that in the intervening night of July 27 and 28, 1997 her husband Vishnu Kant (since deceased) and son Narain came back to the house from Geeta Bhawan after attending pravachan of Bhagwat at about 12. 30 A. M. Feeling Sleeplessness. Vishnukant was lying on wooden Takht in the courtyard while Narain was sleeping by his side. Around 1. 00 AM on hearing the alarm of her husband when went out of her room she found her husband running naked in the courtyard and trembling with agony caused by acid burns. Narain was also running here and there. When she made attempt to catch hold of her husband, she also felt burning sensation on her hand and chest. In the meantime her brother in law Radhakant (appellant) armed with knife, came over there telling that it was only the signal which had been given by him to Vishnukant in return to the demand of the share. Vishnukant and Narain were removed to Anurag Hospital. On regaining consciousness Vishnukant told her that while he was lying in the courtyard and reading a Novel, Radhakant poured acid on him and Narain from the roof. THE report could not be lodged instantly by her as she was compelled by her father in law to keep her mouth shut. When the condition of Vishnukant deteriorated, he was removed to MBS Hospital where he died on August 20, 1997. On the basis of the said report a case under Sections 302, 307 and 201 IPC was registered and investigation commenced. Inquest report was drawn and dead body was subjected to autopsy. After conducting usual site inspection the police took in its possession one piece of "chadar" (Bed-sheet) which had been burnt by acid. The record of treatment of Vishnukant was seized from Dr. B. L. Gochar, Incharge of Anurag Hospital where Vishnukant was initially admitted. Wooden Takht found burnt from acid was also seized. Indra Kumari and Narain were medically examined. Statements of witnesses under Section 161 Cr. P. C. were recorded. The appellant was arrested and at his instance empty bottle of acid got recovered. After completion of investigation chargesheet was filed against the appellant and co-accused Mohan Lal, Smt. Shakuntla W/o Mohan Lal and Dr. B. L. Gochar. In due course the case came up for trial before the learned Additional Sessions Judge No. 5, Kota. Charges under Section 302 and 307 IPC were framed against the appellant who denied the charges and claimed trial. Co-accused Mohan Lal and Shakuntla pleaded not guilty of the charge under Section 201 IPC. Similarly Dr. B. L. Gochar denied charge under Section 176 IPC. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. In defence Dr. Y. K. Sharma (PW. 16) was recalled for cross examination and another Medical Officer Dr. B. L. Chorasia (DW. 2) was produced. On hearing final submissions the learned trial Judge acquitted all the co-accused but convicted and sentenced the appellant as indicated herein above. With the assistance of learned counsel for the appellant we have scanned the material on record. A look at the post mortem report of the deceased goes to show that acid burns were found on the forehead, face, neck, chest, abdomen, arms, thighs, testicles and penis. The cause of death was toxemia septicemia as a result of external ante mortem wounds. Dr. Y. K. Sharma (PW. 13), who performed autopsy on the dead body, in the cross examination however admitted that acid burns sustained by the deceased were not sufficient to cause death in the ordinary course of nature. Narain also sustained following injuries vide medical injury report (Ex. P. 22):- (1) Scar pink colour 3/4 x 1/2 on the forehead (2) Multiple scars pink colour on the right side of face (3) Multiple scars tiny size pink colour over Rt. forearm and Rt. elbow (4) Scar pink colour 1/2 x 1/2 on back of cumber region (5) Wound reddish colour on Rt. leg and Rt. thigh. (6) Wound reddish colour on left leg.
(3.) LEARNED counsel for the appellant submitted that the prosecution witnesses Gordhan Lal, Narayan and Indra are highly partisan and interested witnesses, therefore no reliance should have been placed on their testimony. Narayan is a boy of tender years who does not even understand the sanctity of oath, as such the learned trial court did not administer oath to him. It is further urged that Narayan was asleep at the time of occurrence and Indra was not present at the scene as she was sleeping in the room, whereas the incident took place in the courtyard. As such there is not direct evidence of involvement of the appellant in the alleged incident. LEARNED counsel further urged that the recovery of glass bottle, wooden takht and burnt chadar does not inspire confidence as there is no connection between seized articles and the injuries sustained by Vishnukant. It is further urged that Indra stated that she found one tin lying on the wall of the roof was brought by her downstairs, whereas the prosecution claims to have seized the bottle at the instance of appellant. LEARNED counsel further urged that Jaisingh, witness for recovery of bottle (Ex. P. 10) has stated in cross examination that the bottle was of Roohafza Sharbat and did not contain any label of acid. Siraj Ahmed, witness for recovery of wooden takht (Ex. P. 8), failed to prove as to which part had been seized. As such no reliance should have been placed on the prosecution case. LEARNED counsel further urged that the FIR had been lodged by Smt. Indra Sharma after inordinate delay of 26 days and nearly 2 days after the death of Vishnukant. The prosecution has failed to explain the delay. It is further urged that Gordhan Lal, brother of Indra Sharma, had come to Kota on receiving telephonic message and stayed at Kota but he did not lodge the report. This circumstance completely belies the prosecution case. LEARNED counsel further urged that Indra Sharma has categorically stated that no quarrel took place between her husband and the appellant as such no motive on the part of appellant to have thrown acid could be proved. It is further urged that the incident is alleged to have taken place on July 27, 1997 and remained alive upto August 20, 1997, during this period he was conscious but he did not state about throwing acid by the appellant nor he lodged the report as such the FIR is concocted one. LEARNED counsel for the appellant urged that according to statement of Dr. Y. K. Sharma the cause of death of deceased was Septicemia and toxemia and he has also stated that in the ordinary course of nature death is not caused by the kind of burn injuries which had been sustained by the deceased. As such the appellant has wrongly been convicted under Section 302 IPC. It is further urged that Dr. Basanti Lal Chorasia deposed that when Vishnukant was taken to him he suggested to get him admitted in MBS Hospital Kota, at that time the injured stated that while he was sleeping something fell on him by which he got burnt. The injured Vishnukant was fully conscious and he did not named the person who threw acid on him and the injured was admitted in Anurag Hospital. Dr. Chorasia stated that if infection leading to septicemia had not taken place the injured would not have died. LEARNED counsel submitted that from the evidence of Dr. Chorasia it is clear that the appellant has been falsely implicated in the instant case. The learned trial Court has wrongly found corroboration from the testimony of India Sharma and Narayan which completely vitiate the judgment of trial Court. The charge framed against the appellant was wholly vague. Per contra learned Public Prosecutor supported the impugned finding of learned trial Judge and canvassed that because the appellant and deceased were the real brothers, the informant was prevented from lodging the report instantly, Witness Narayan (PW. 4) was the boy of mature understanding and he himself sustained acid burns, therefore his testimony was righlty relied upon. Testimony of informant Indra is also trustworthy as she immediately rushed out of her room on hearing alarm of her husband and found acid burns on various parts of his body. We have given our anxious consideration to the submissions and carefully scrutinised the testimony of Narayan (PW. 4) and Indra (PW. 5 ). ;