GOPAL Vs. STATE

JUDGEMENT

(1.) By the present appeal, Gopal challenges the impugned judgment dated 16th October 2018 convicting him for the offence punishable under Sections 323/452/326-B IPC in FIR No. 184/2017 registered at PS Sultan Puri and the order on sentence dated 18th October 2018 directing him to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 323 IPC, rigorous imprisonment for a period of three years and six months and to pay a fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for a period of one month for the offence punishable under Section 452 IPC and rigorous imprisonment for a period of five years and to pay a fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for a period of two months for the offence punishable under Section 326-B IPC.

(2.) Learned counsel for the appellant contends that the injured and the eyewitness Rameshwari (PW-9) have turned hostile during the course of trial and only Nirmala (PW-11) has supported the case of the prosecution. On perusal of the testimony of Nirmala it is evident that she has not witnessed the incident and her evidence is required to be discarded as hearsay. Further Nirmala who supported the case of the prosecution in her cross-examination has stated that her house was at least 7-8 houses away from the house of the injured. Therefore, for her to witness the appellant entering the house of the injured with a plastic bottle and then throwing acid on him inside the house is unreliable. Nirmala in her cross-examination admitted that she had filed a complaint against the appellant one year ago, and therefore there is motive for her to depose falsely against the Appellant. Further the fact that the acid was poured from the bottle is belied by the FSL report, which found no acid in the bottle. Injured Raju (PW-8) did not support the case of the prosecution. He did not depose about the presence of the Appellant on the spot on the date of incident and does not corroborate the version of the prosecution. Similarly, Rameshwari who was also declared hostile in her cross-examination stated that no quarrel took place between the appellant and the injured.

(3.) Learned counsel further states that DW-1 and DW-2 have deposed that the appellant was picked up from his house, taken away and that no incident took place on the said date. Therefore, it creates doubt regarding the presence of the appellant at the spot on the date and time of the incident. It is contended that there was no acid found in the bottle, but only on the clothes. Presence of hydrochloric acid on the clothes can be attributed to a period/incident prior in time as it has come on record in the cross-examination of Jitender Kumar (PW-7), that effect of hydrochloric acid cannot be washed away from clothes and can be detected for a long time period. This opinion of PW-7 raises doubt regarding the prosecution version. MLC of the injured does not bear any opinion of an injury being caused by acid. It merely states alleged corrosive acid on face. However, the appellant left the hospital when the case was referred to surgery department and hence no opinion was given on the MLC.