DUDH NATH Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Additional Sessions Judge in Sessions Case No. 102/1993 arising out of FIR No. 911/1971 Police Station Pahar Ganj, New Delhi vide which the appellant has been convicted for having committed offences punishable under Sections 302 and 326 of the Indian Penal Code (in short 'IPC') and the consequent order on sentence. Briefly stated, case of the prosecution as revealed from the charge sheet is that on 17th October 1971 Shambhu (since deceased) and PW -1 Hari Ram were admitted in Irwin Hospital with the history of having suffered acid burns. The information about their admission in hospital was conveyed by the Duty Constable to the Police Station Pahar Ganj, which was recorded vide daily diary No. 12 -A dated 17th October 1971. Copy of the DD report was entrusted to S.I. Nathu Singh for further action, who visited the Hospital and collected MLCs of both, the deceased Shambhu and injured Hari Ram who were declared unfit for making the statement. Thereafter, he went to the place of occurrence where he met Ram Harak and recorded his statement, wherein he stated that he was sharing a room in Qtr. No. AB -410, Gali No. 3, Amarpuri, Nabi Karim, Delhi with the deceased Shambhu, injured Hari Ram and his nephew Ram Prasad. About 20 days prior to the occurrence appellant Dudh Nath also came and started living with them in the room. On the fateful night, the deceased Shambhu and Hari Ram were sleeping on a cot in the room. He and his nephew Ram Prasad were sleeping on another cot in the room and appellant Dudh Nath was sleeping on a separate cot. At about 4.30 AM, he woke up on hearing shrieks of the deceased Shambhu and injured Hari Ram and he saw Dudh Nath fleeing away after pouring acid on Shambhu and Hari Ram. Shambhu suffered acid burns on his chest, face and other parts of the body and Hari Ram also suffered acid burns on his body. His nephew Ram Prasad took both of them to the hospital and got them admitted. On the basis of aforesaid statement, formal FIR was registered. From the place of occurrence, a plastic can emitting smell of acid was seized. Sample acid affected soil, sample soil, some ash and the cot on which Hari Ram was reportedly sleeping were seized. The Investigating Officer also took into possession clothes of the deceased Shambhu and injured Hari Ram which were burnt due to acid. Shambhu later on expired. His body was sent for post mortem and as per the report of post mortem, cause of death was found to be the acid burns. The items seized during investigation were sent to CFSL for chemical analysis and as per the report of CFSL, sulphuric acid was found to have been used in the occurrence. Investigating Officer made efforts to arrest Dudh Nath who had absconded and since he could not be traced he was declared a proclaimed offender.

(2.) THE charge sheet against the accused was filed showing him as an absconder. Evidence against the appellant was recorded in absentia under Section 512 of Cr.P.C. 1898 and after recording statements of the witnesses the case was consigned to the Record Room. The accused, however, was arrested by the police on 15th July 1989 and put to trial.

(3.) THE learned Amicus Curiae has taken us through the testimony of PW -1 Hari Ram, PW -2 Mohra Devi widow of the deceased and PW -9 Ram Prasad and submitted that from their testimony it is evident that there was ill -will between the appellant and the deceased in respect of some dispute regarding village land between their respective families and also that PW -1 Hari Ram is admittedly the brother -in -law of the deceased. She has submitted that the learned Trial Court ought to have taken note of aforesaid facts to conclude that PW -1 Hari Ram had a motive to falsely implicate the accused, therefore, instead of his relying upon his uncorroborated testimony regarding the identity of the appellant as the acid thrower, the learned Additional Sessions Judge ought to have given benefit of doubt to the appellant.