BHARAT Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) By these two appeals, the appellants challenge the common impugned judgment dtd. 5/5/2017 whereby the appellants have been convicted for offence punishable under Sec. 326-A/34 IPC and the order on sentence dtd. 26/5/2017 whereby they have been directed to undergo rigorous imprisonment for a period of 11 years and to pay a fine of Rs.2.00 lakhs each, in default whereof to undergo 1 year simple imprisonment. The fine so imposed is to be given to the victim as compensation.

(2.) Learned counsel for the appellant Bharat submits that the impugned judgment has been passed by the learned Trial Court by shifting the burden of proof on the accused, though it was the prosecution which was required to prove its case beyond reasonable doubt. There is no evidence on record to show that the appellant Bharat had asked for the number of the complainant at the time of marriage of Deepak or that Bharat used to call the complainant to enquire about the well-being of his sister, or that on 25/6/2013 Bharat came to her home and proposed her for marriage, or that on the refusal of the complainant, Bharat slapped her and took the SIM card of her mobile phone, to establish the motive behind the commission of the alleged offence. The SIM card of the mobile phone allegedly taken by the appellant Bharat was not recovered from his possession, as is evident from the personal search memo Ex.9/C. The prosecution did not even recover the container which was allegedly used by the appellants to through acid on the complainant to prove the version of the prosecution.

(3.) Learned counsel states that Bharat has been implicated despite the fact in the FIR the complainant stated that unknown persons had thrown acid over her and she could not see the faces of the two people on the bike, as both of them had tied handkerchief on their faces and the person driving the bike was wearing a helmet also. However, later she changed her stand and improved in her statement recorded under Sec. 164 Cr.P.C. and her testimony before the Court. The two eye-witness PW-4 and PW-5 have not supported the case of the prosecution and have stated that they could not see the faces of the two boys or even the number of the bike. Testimonies of PWs-4 and 5further fortify the fact that the complainant could not have identified the accused persons. Conduct of the alleged eye-witnesses is also unnatural; though they claim to be good friends of the complainant, however they left her after knowing that somebody had thrown acid on her and she was grievously injured. Thus the two alleged eye-witnesses, have been planted as eye-witnesses. There are material contradictions in the testimony of PW-1/ complainant and the investigating officer who appeared as PW-24. As per the testimony of the complainant, Bharat was driving the bike and he threw the acid on her after stopping the bike. However, as per PW-24 the second (IO) it was informed to him that Bharat who was the pillion rider threw acid on the complainant. The learned Trial Court overlooked the material improvements made by the complainant in her statement recorded under Sec. 164 Cr.P.C. i.e. EX.PW-1/DX and the supplementary statement Ex.PW-24/K, both recorded on 16/8/2013 i.e. after 8 days of the alleged incident. There are other material contradictions and improvements in the deposition of the complainant.