Patna High Court
Binod Mahto vs The State Of Bihar on 3 December, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1402 of 2021
Arising Out of PS. Case No.-244 Year-2018 Thana- HASANPUR District- Samastipur
======================================================
1. Binod Mahto, Son of Ram Jivan Mahto, Resident of Village- Chandrapur,
P.S.- Hasanpur, District- Samastipur.
2. Darshan Kumar, Son of Binod Mahto, Resident of Village- Chandrapur, P.S.-
Hasanpur, District- Samastipur.
... ... Appellants
Versus
The State of Bihar
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
For the Respondent-State: Mr. A.M.P. Mehta, APP
For the Informant : Mr. Vinay Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
Date : 03-12-2024
This appeal has been preferred by the
appellants/convicts under Section 374(2) of the Code of
Criminal Procedure (hereinafter referred to as 'the Cr.P.C.')
challenging the impugned judgment of conviction dated
24.11.2020
and order of sentence dated 28.11.2020
respectively passed by learned Additional Sessions Judge-1st
Rosera, Samastipur in Sessions Trial No.335 of 2019 arising
out of Hassanpur P.S. Case No.244 of 2018, whereby the
concerned Trial Court has convicted the appellants/convicts
for the offences punishable under Sections 147, 148,
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447/149, 341/149, 323/149, 324/149, 326-A/149, 326-
B/149 of the Indian Penal Code (for short ‘IPC’) and
sentenced them to undergo rigorous imprisonment for two
years under Section 148 of the IPC, imprisonment for one
month under Section 447/149 of the IPC, imprisonment for
one year under Section 323/149 of the IPC, rigorous
imprisonment for ten years with fine of Rs.30,000/- and in
default of payment of fine, to further undergo rigorous
imprisonment for six months under Section 326-A/149 of the
IPC and rigorous imprisonment for five years with fine of
Rs.20,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for three months under
Section 326-B/149 of the IPC. However, all the sentences
have been ordered to run concurrently.
2. In brief, case of prosecution, as per written
report of informant/PW-5 namely, Rajesh Kumar given to the
Officer Incharge of Hasanpur Police Station, inter alia that on
18.11.2018 at about 9:30 A.M., his niece, namely, Nibha
Kumari aged about 17 years was going towards darwaja
(courtyard) from the house and when she reached near to
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darwaja, Pappu Kumar and Pankaj Kumar started teasing her.
The niece of informant raised alarm and on so, Rakesh
Kumar, Raghvendra Kumar, Sobhakant Mahto, Arbind Mahto,
Priti Kumari, Swati Kumar, Arvind Mahto, Kanchanmala,
Amerika Devi, Pramila Devi arrived there. In the meantime,
Binod Mahto (appellant), Ram Pravesh Mahto, Ramjivan
Mahto, Darshan Kumar (appellant), Premsheela Devi, Rekha
Devi, Soni Kumari, Bandana Kumari, Darshania Devi and 3-5
unknown persons armed with lathi, danda, pistol and acid
arrived there. The Binod Mahto (appellant), Pappu, Darshan
(appellant) and Pankaj brought acid and started abusing and
assaulting them, whereafter, Binod Mahto (appellant), Pappu,
Darshan (appellant) and Pankaj poured acid on them, as a
result of which, Raghvendra Kumar, Nibha Kumari, Rakesh
Kumar became badly injured and, thereafter, several persons
came there and brought injured for treatment at Primary
Health Centre, Hasanpur and from there, Rakesh Kumar,
Raghvendra Kumar and Nibha Kumari were referred to Sadar
Hospital, Samastipur for better and specialized treatment.
3. On the basis of aforesaid written information, a
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formal FIR, being Hasanpur P.S. Case No.244 of 2018 was
registered for the offences under Sections 147, 148, 149,
341, 323, 324, 326-A, 326-B 307, 354, 504 and 506 of the
IPC as to investigate the crime in question.
4. After completion of investigation, on the basis of
materials collected thereof, the Investigating Officer of this
case has submitted charge-sheet No.205 of 2018 dated
30.12.2018 against Binod Mahto (appellant), Darshan Kumar
(appellant) and other co-accused namely, Ramjivan Mahto
under Sections 147, 148, 149, 307, 323, 324, 326-A, 326-
B, 341, 354, 504 and 506 of the IPC and supplementary
investigation was continued against rest of the co-accused
persons. After submission of charge-sheet, the learned
Jurisdictional Magistrate took cognizance of the offences on
08.01.2019 for the offences under Sections 147, 148, 149,
307, 323, 324, 326-A, 326-B, 341, 354, 504 and 506 of the
IPC. Thereafter, the learned Jurisdictional Magistrate has
committed the case to the court of Sessions under Section
209 of the Cr.P.C., after compliance of Section 207 of
Cr.P.C., whereafter it was transferred to the court of learned
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Additional Sessions Judge-II, Rosera, for its trial and disposal.
5. The learned trial court after going through
materials collected during investigation, framed charges
under Sections 147, 148, 149, 341, 447, 323, 324, 307,
326-A, 326-B, 354, 504 and 506 of the IPC against the
appellants and other co-accused, namely, Ram Jiwan Mahto
on 01.07.2019, which were explained to appellants/convicts,
to which, they pleaded not guilty and claimed to be tried.
6. To substantiate its case, the prosecution has
examined altogether fourteen (14) witnesses. They are:- (i)
PW-1 Arvind Mahto; (ii) PW-2 Rakesh Kumar; (iii)
PW-3 Shobhakant Mahto; (iv) PW-4 Priti Kumari, (v)
PW-5 Rajesh Kumar (informant); (vi) PW-6 Pramila
Devi; (vii) PW-7 Nibha Kumari (viii) PW-8 Raghvendra
Kumar, (ix) PW-9 Dr. Arvind Kumar; (x) PW-10 Dr.
Vimal Rai; (xi) PW-11 Tunanand Singh (Investigating
Officer of this case); (xii) PW-12 Dr. Prabhu Dayal
Sharma; (xiii) PW-13 Dr. Hemant Kumar Singh; and
(xiv) PW-14 Dr. A.N. Shahi.
7. Apart from the oral evidence, the prosecution
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has also relied upon following exhibits/documentary
evidences, which are as under:-
Sl.No. Exhibit Nos. Documents exhibited
1. Exhibit-1 Written report.
2. Exhibit-1/1 Signature of informant on
written report.
3. Exhibit-1/2 Pagination on written report.
4. Exhibit-1/3 Signature of the then S.H.O. on
formal FIR.
5. Exhibit-2 Injury report of Munna Kumar
(Raghvendra Kumar).
6. Exhibit-2/1 Signature of doctor on injury
report (exhibit-2).
7. Exhibit-3 Injury report of Rakesh Kumar.
8. Exhibit-3/1 Signature of doctor on injury
report (exhibit-3).
9. Exhibit-4 Injury report of Nibha Kumari.
10. Exhibit-4/1 Signature of doctor on injury
report (exhibit-4).
11. Exhibit-5 & Supplementary injury report of
5/1 Raghvendra Kumar and
signature of witness on it.
12. Exhibit-6 & 6/1 Supplementary injury report of
Nibha Kumari and signature of
witness on it.
13. Exhibit-7, 7/1 Supplementary injury report of
and 7/2 Rakesh Kumar and signature of
doctor on it.
14. Exhibit-8 & 8/1 Injury report of Amerika Devi
and signature of doctor on it.
15. Exhibit-9 & 9/1 Injury report of Priti Kumari and
signature of doctor on it.
16. Exhibit-10 and Injury report of Pramila Devi and
10/1 Signature of doctor on it.
17. Exhibit-11 and Injury report of Kanchan Mala
11/1 and signature of doctor on it.
18. Exhibit-12 and Formal FIR and signature of
12/1 S.H.O. Mahadeo Kamat.
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19. Exhibit-13 and Arrest memo of Darshan Kumar
13/1 and signature of S.H.O. over it.
20. Exhibit-14 and Arrest memo of Ramjivan Mahto
14/1 and signature of S.H.O. over it.
21. Exhibit-15 and Arrest memo of Binod Kumar
15/1 and signature of S.H.O. on it.
22. Exhibit-16 and Forwarding report and signature
16/1 of witness on it.
23. Exhibit-17, 17/1 Charge-sheet and signature of
and 17/2 witness and S.H.O. on it.
24. Exhibit-18 Injury report of Rajesh Kumar
25. Exhibit-18/1 Signature of doctor on injury
report of Rajesh Kumar.
26. Exhibit-19, Medical report and signature of
19/1, 19/2, Dr. A.N. Shahi, Dr. Nagmani Rai
19/3 and 19/4 and Dr. Jaikant Paswan and
injured Raghvendra Kumar.
27. Exhibit-20 Order passed by Hon’be High
Court dated 15.05.2019.
28. Exhibit-20/1 Order passed by Hon’ble High
Court dated 21.10.2019.
8. On the basis of evidences/circumstances as
surfaced during the trial, the learned trial court has examined
the appellants/accused under Section 313 of the Cr.P.C.,
where they completely denied all the evidences surfaced
during the trial and claimed their complete innocence.
9. The appellants/convict in order to prove their
innocence, examined three defence witnesses, who are DW-1
Narayan Paswan, DW-2 Anandi Das and DW-3 Sukan Das.
10. Taking note of the evidences as surfaced during
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the trial and after considering the arguments as advanced by
both the parties, the learned Trial Court has convicted the
appellants/convicts/accused for the offences punishable under
Sections 147, 148, 447/149, 341/149, 323/149, 324/149,
326-A/149, 326-B/149 of the IPC and sentenced them in the
manner indicated above.
11. Being aggrieved with the aforesaid judgment
of conviction and order of sentence, the appellants/convict
have preferred the present appeal.
12. Hence, the present appeal.
Argument on behalf of the appellants/convicts:
13. It is submitted by Mr. Ajay Kumar Thakur,
learned counsel appearing on behalf of the
appellants/convicts that the learned Trial Court while
recording the judgment of conviction overlooked the vital
contradictions and omissions of witnesses on the point of
occurrence and on this ground alone, the impugned judgment
is fit to be quashed/set aside. It is submitted that only inimical
and partisan witnesses were examined in support of case of
the prosecution and, as such, non-examination of
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independent witnesses despite of its availability makes a
serious doubt regarding the occurrence. It is further
submitted that injured were examined medically after lapse of
substantial period of time, which creates a doubt in itself that
the said injury caused due to present crime. It is pointed out
that considering the delay part, the accidental injury out of
unknown occurrence cannot be ignored, which was made
instrumental to implicate the appellants falsely with present
case being an afterthought.
13.1. It is further submitted by Mr. Thakur that
“corrosive substance” is different with acid and, therefore,
until and unless it is not proved by chemical examination that
the substance used in attack was acid, the learned Trial Court
cannot convict the appellants for the specific offence, which is
available under Sections 326-A and 326-B of the IPC. It is
submitted that the evidence available on record suggest that
said liquid was battery water. In this context, it is submitted
that injured was running a garage having lot of batteries
under their use and possession, where he received injuries out
of accident while carrying such batteries on head while
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working in garage. It is submitted that the injury report was
given after about one year and such delay is sufficient to
gather that appellants were falsely implicated, who are none
but the agnates of the informant and having land dispute
since long, for which, a title suit is also pending. It is also
pointed out that the injury of injured are simple in nature and
on this score also, the conviction under Section 326-A is bad
in the eyes of law.
13.2. While concluding argument, Mr. Thakur
submitted that the prosecution has suppressed its earlier
version. It is also pointed out that no vessel or container,
containing acid was seized from the place of occurrence.
There is no any seizure of burnt clothes. Neither any material
or soil or clothes were sent for Forensic Science Laboratory
(for short ‘FSL’) for its examination, which may ascertain that
substance, which was used to cause injury was acid.
13.3. Having all such facts as available on record
makes the balance of appeal in favour of appellants and
considering the same, this appeal deserves to be allowed by
setting aside the impugned judgment of conviction.
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Argument on behalf of the State/Informant:-
14. It is submitted by Mr. A.M.P. Mehta, learned
APP for the State duly assisted by Mr. Vinay Kumar Mishra,
learned counsel for the informant while arguing qua crime in
question that the injured persons and several eye-witnesses
have supported the occurrence. It is submitted that there is
no reason to disbelieve the version of injured who received
acid injury during the occurrence and the plea of receiving
injury out of unknown accident is only a manipulative
argument without having any basis. It is submitted that the
delay for medical examination is well- explained and it was
only on the interference of Hon’ble High Court, the injured
was examined medically when he lost his external pinna
(external ear) completely due to acid attack. It was a brutal
attack when the injured was caught hold by accused persons
and the acid was poured on his head. Learned APP further
submitted that injuries are in full corroboration with the
manner of occurrence. The alleged land dispute may be one of
the reasons for present occurrence but, same cannot mitigate
the criminal responsibility of appellants arising out of present
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crime in question i.e. of acid attack.
14.1. Learned APP further submitted that every
acid is corrosive in nature. It is pointed out that strength of
acid i.e. degree of corrosiveness depends upon its “P H” value
and, therefore, it is not necessary to establish substance as an
acid through any particular chemical test, as submitted. In
this context, learned APP further submitted that the doctor,
who examined the injured persons categorically stated
through medical examination report that injury was caused
due to acid and it appears in full corroboration with the
manner in which it was poured on the body of the injured. It is
also pointed out that non-seizure of burnt clothes and non-
recovery of vessel, container of acid may be due to faulty
investigation, but it does not lead to conclusion ipso facto that
occurrence was not of acid attack particularly, in view of
medical examination report of the injured. The oral evidence
of injured and medical examination report in itself appears
conclusive in nature to establish the crime in question beyond
any reasonable doubt qua appellants and, therefore, same
cannot require to be interfered with at appellate stage. In
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support of his submission, learned APP referred to the
judgment of Hon’ble Supreme Court as available through
Khema alias Khem Chandra and Ors. vs. State of Uttar
Pradesh [(2023) 10 SCC 451].
15. I have perused the trial court records carefully
and gone through the evidences available on record as also
considered the rival submissions canvassed by learned
counsel appearing on behalf of the parties.
16. After hearing the arguments and upon perusal
of records, it appears to this Court that the evidence as
surfaced during the trial is required to be discussed for the
purpose of its re-appreciation, which appears essential for the
just and proper disposal of the present appeal.
17. PW-1 is Arvind Mahto. It was deposed by
him that occurrence is of 18.11.2018, which was Sunday and
it took place at about 9:30 A.M. At that time, he was in his
courtyard and his daughter namely, Nibha Kumari was going
to cattle house by crossing courtyard. In the meantime,
accused Pappu Kumar and Pankaj Kumar came there and
started to teasing her and also abused her. On her alarm, he
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along with Sobha Kant Mahto, Rajesh Kumar, Rakesh Kumar,
Amerika Devi, Preeti Kumari, Swati Kumari and his mother
went there. His mother, his son Raghvendra @ Munna and his
wife Parmila Devi went there. It was deposed that the
moment they arrived, Pankaj and Pappu fled away to their
home and returned with Binod Ram, Pravesh Mahto, Darshan
Mahto, Ramjiwan Mahto, Soni Devi, Premshila Devi, Rekha
Devi @ Sariya Devi, Bandana Devi alongwith four unknown
came to his cattle house. Out of them, Pankaj, Pappu, Binod
and Darshan were equipped with lathi and rod, who upon
arrival at place of occurrence started to assault physically and
also attacked with acid. The acid attack was done by Darshan,
Pappu, Pankaj and Binod. They poured acid on Raghvendra @
Munna, Rakesh, Amerika Devi and Nibha Kumari. It was
deposed that head, neck, back side, hand, stomach, leg and
left external pinna of Raghvendra was completely burnt
during occurrence. Nibha Kumari received injury on her face
and leg. Amerika Devi received injury on her hand and Rakesh
also received injury on his face, neck, stomach etc. The acid
also burnt their clothes. It was deposed that Preeti Kumari,
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Swati Kumari, his mother and wife becomes injured due to
lathi assault. After the occurrence, accused persons including
the appellants fled away to their home. The injured persons
were brought to Hassanpur Government Hospital with help of
co-villagers, where they were treated but, by taking note of
serious medical condition of injured, Raghvendra, Nibha and
Rakesh were referred to Samastipur Sadar Hospital, from
where, injured Raghvendra Kumar was further referred to
Patna Medical College and Hospital (for short ‘PMCH’) at
Patna. It was deposed that injured Raghvendra is still under
treatment at PMCH. He further deposed that the occurrence
was witnessed by Shobha Kant Mahto, Ashok Kumar, Lakshmi
Mahto, Krishna Kumar Bhardwaj, Mantun Mahto. They were
also threatened by the accused persons after the occurrence.
17.1. Upon cross-examination, it was stated by him
that his statement was recorded by police at about 1.00 P.M.
They arrived at place of occurrence after five minutes of
alarm raised by Nibha Kumari. He affirmed the land dispute
with accused persons. It was also stated that still title suit is
pending between them, bearing Title Suit No.126 of 2016,
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which is pending in the court of Sub Judge-I, Rosera. He also
visited the hospital along with injured. It was stated that
Rajesh Mahto is not running a scrap shop rather he was
running a tent house. It was stated that at the time of
occurrence, injured Raghvendra was wearing T-shirt and half
paint. His T-shirt and paint were burnt during the occurrence.
Injured Raghvendra is his son and injured Nibha Kumari is his
daughter. Nibha was wearing frock and paijama. It was stated
that paijama of Nibha was burnt upto knee. Her face was also
burnt. Rakesh Kumar also received acid injuries. His face was
burnt. His shirt was also burnt during the occurrence. He did
not notice whether acid was dropped to ground or not. He saw
acid injuries. He saw two injuries on the body of Nibha.
Rakesh received injury on his face and neck. His whole face
and neck was burnt. It was also stated that none of the victim
received any compensation from acid attack despite of giving
application.
18. PW-2 is Rakesh Kumar. He narrated the
occurrence in the manner as stated by PW-1 by supporting
that it took place on 18.11.2018, which was Sunday at about
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9:30 A.M. It was deposed by him that during the occurrence,
Ramjiwan Mahto ordered to co-accused persons to kill them
by throwing acid whereafter, Pappu, Pankaj, Darshan and
Ram Binod Mahto poured acid on the head of injured
Raghvendra resultantly, his body was burnt along with neck,
head, stomach, arms and whole legs. It was stated that whole
left ear of Raghvendra was corroded and his clothes was also
burnt. It was deposed that Binod, Darshan, Pappu and Pankaj
also poured acid on his head, which caused burn injury on his
cheek and neck. His shirt was also burnt. Thereafter, they
also poured acid on Amerika Devi resultantly, her hand was
also burnt and finally, they poured acid on injured Nibha
Kumari, who received injury on her legs. Her clothes were
also burnt. After the occurrence, all injured including him
were brought to Hassanpur hospital from where, he along
with injured Nibha and Raghvendra were referred to Sadar
Hospital, Samastipur from where Raghvendra was further
referred to PMCH, which is still continued. He shown his shirt
to court during trial, which found burnt in front side. It was
stated that said shirt was not seized by police, whereas the
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clothes of other injured were seized by police. It was stated by
him that he is running a garage in village and repairing old
tractor. He runs said garage with his brother Raju Kumar
since 2003. Old batteries being sold out as a whole and do
nothing with its acid. He was not doing any business related
with battery. He said to have aware about the fact that
battery contains acid but, not aware about its quantity. He
usually washed working clothes of garage after 2-3 days. He
denied the suggestion that to make occurrence serious, the
allegation of outraging modesty was super-added. He shown
his burn injury on neck to the court during the trial.
19. PW-3 is Shobha Kant Mahto, who also
supported the date, day and time of occurrence and deposed
that on alarm of Nibha Kumari, daughter of Arbind Mahto
(PW-1) along with him arrived at place of occurrence, where
co-accused Pappu and Pankaj were already present, who fled
to their house and called all family members equipped with
lathi danda and acid. He named some of the co-accused
persons accompanied Pappu, Pankaj, Darshan, Binod Mahto,
Rekha Devi, Ramjiwan Mahto along with 14-15 persons. He
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categorically stated that out of them, Pankaj, Darshan, Pappu
and Binod were equipped with acid in their hand. It was
deposed that initially assault was made by lathi but, upon the
order of co-accused Ramjiwan Mahto as to kill them by
pouring acid, co-accused Pankaj, Pappu, Darshan, and Binod
poured acid on Raghvendra, resultantly, his whole body
starting from head to leg was burnt. The clothes was also
burnt during the occurrence and when to save injured
Raghvendra (PW-8), Rakesh (PW2) went there, they also
poured acid on him, resultantly, his stomach and cheek was
burnt. Injured Nibha Kumari (PW-7) received injury on her
leg. Others also received acid injuries, who went to save
them. All injured were brought to Hasanpur Government
Hospital from where, Reghvendra, Rakesh and Nibha were
referred to Sadar Hospital, Samastipur, from where observing
the serious condition of Raghvendra, he was referred to
PMCH, Patna.
19.1. In cross-examination, he also affirmed the
manner of injuries as he was stated in his examination-in-
chief. It was stated that Nibha Kumari (PW-7) is his cousin
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sister. It was stated that Raghvendra was also assaulted on
his head by Ramjiwan Mahto by lathi but, he did not received
any injury out of said assault and soon thereafter, the acid
attack was done. He could not made any attempt to save the
victim as his hand was fractured due to road accident. He
returned to home from Samastipur after sending Raghvendra
to PMCH.
20. PW-4 is Preeti Kumari. She also supported
the date, day and time of occurrence and also the manner of
assault as well as acid attack specifically caused by co-
accused Pankaj, Pappu, Binod and Darshan. She also stated
that Ramjiwan Mahto poured acid resultantly, ear of
Raghvendra corroded and he also received acid burn injury
throughout on his body upto leg. She also deposed in same
manner regarding hospitalization and treatment of injured
persons, as deposed by earlier prosecution witnesses.
20.1. Upon cross-examination, she deposed that
when she arrived at the place of occurrence, she found
Raghvendra Kumar, Nibha Kumari, Rakesh Mahto, Amerika
Kumari in burnt condition. She did not made any statement
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before police. The occurrence of outraging the modesty was
first time. They were not on talking terms with family of
accused persons. She denied land dispute between the
parties. From her deposition, it can be gathered safely that
she is not the actual eye-witness of the occurrence of acid
attack, as the injured already received injuries before her
arrival at the place of occurrence. She also appears to depose
regarding occurrence first time during the trial, as she has not
made statement before police during investigation.
21. PW-5 is Rajesh Kumar, who is informant of
this case and deposed that occurrence was of 18.11.2018 on
Sunday at about 9:30 A.M. It appears from his deposition
that initially co-accused Pappu and Pankaj outraged the
modesty of her niece Nibha Kumari, which was objected by
him and, thereafter, on alarm of Nibha Kumari (PW-7), other
family members arrived whereafter, Pappu and Pankaj also
joined by other co-accused persons which in total become
eleven persons. It was deposed that Binod, Pappu, Pankaj and
Darshan were equipped with acid bottle and other co-accused
persons were equipped with lathi. It was stated that upon
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order of co-accused Ram Jiwan Mahto to kill injured persons
by pouring acid, co-accused namely, Binod Maho, Pankaj,
Pappu and Darshan Kumar poured acid on Raghvendra and
also on Rakesh Kumar, resultantly, they received severe burn
injury upon their face, back, stomach, ear etc. Subsequently,
Nibha Kumari was also attacked by acid due to which, her
face got disfigured. Amerika Devi also received injury on her
hand and, thereafter, accused persons fled away with empty
bottles. It was deposed that initially all injured persons were
referred to Hassanpur Primary Health Center from where,
Raghvendra Kumar, Rakesh Kumar and Nibha Kumari were
referred to Sadar Hospital, Samastipur. Considering serious
condition, Raghvendra Kumar was further referred to PMCH,
Patna. A written information regarding occurrence was given
by him to Hassanpur Police Station, which was written by his
nephew Mintu Kumar and after reading the contents and
finding its correct, he put his signature there. He identified his
hand-writing and signature on written information dated
18.11.2018, which upon his identification was exhibited as
Exhibit No.1 and Exhibit No.1/1 respectively.
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21.1. Upon cross-examination, it was stated by him
that the occurrence took place due to outraging of modesty of
injured Nibha Kumari. It was stated that as Arvind Kumar was
not available and he was in Samastipur for treatment, he
became the informant of the occurrence. He stated to run a
tent house business in village in the name and style of M/s.
Deluxe Tent House. He denied the land dispute with accused
persons and shows his ignorance whether any land dispute is
pending or not. It was stated that the complain of outraging
the modesty was made by Nibha Kumari herself. He did not
receive any acid injury during the occurrence but, he was
assaulted by lathi, he was not treated medically. It was stated
by him that the colour of acid was red. Amerika Devi received
acid injury on her right hand. Kanchan Mala did not receive
any acid injury. It was co-accused Ram Jiwan Mahto, who
ordered to pour acid. The acid was also not found upon Preeti
Kumari. It was stated that Rakesh Kumar (PW-2) is running a
garage. He shown place of occurrence to the police. It was
stated by him that some drops of acid were also found fallen
on ground. It was categorically stated by him that the cause
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of present occurrence was outraging the modesty of Nibha
Kumari. It was stated that he made statement to police that
Raghvendra received injury on his back and ear. Nibha
Kumari also received injury on her face out of said acid
attack. Amerika Devi received injury on her hand. He denied
the suggestion that as he was not at place of occurrence,
therefore, he did not receive any acid injury. He also denied
the suggestion that modesty of Nibha Kumari was not
outraged by accused persons. He denied the suggestion that
PW-3 after taking of acid from his scrap shop, made an
attempt to throw it upon accused/appellant but, he himself
received injury due to accident. He denied the suggestion that
due to pending Title Suit No.126 of 2016, present false
criminal case was lodged.
22. PW-6 is Parmila Devi. She also supported
the occurrence and deposed that it took place before ten
months on Sunday at 9:30 A.M. She also witnessed the acid
bottles in hand of Pappu Kumar, Pankaj Kumar, Binod Mahto
and Darshan Kumar. She deposed that on order of Ram Jiwan
Mahto, acid was thrown. It was stated that co-accused Pappu,
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Pankaj, Binod and Darshan poured acid on Raghvendra
Kumar, resultantly, his head, ear, back, neck and chest were
burnt. Rakesh Kumar (PW-2) was also attacked by acid and,
thereafter, all these four persons thrown acid upon Nibha
Kumari. She also supported the manner of occurrence and
hospitalization of injured persons as it was deposed by earlier
prosecution witnesses and same not requires to be repeated
for the sake of brevity.
22.1. Upon cross-examination, it was deposed by
her that Nibha Kumari is her daughter. It was also stated that
she is a witness of outraging the modesty of her daughter by
accused persons. She denied that Manoj and Pappu are her
relative. It was stated that Nibha never complaint earlier
regarding Pappu and Pankaj. She denied any previous enmity
with accused persons. She categorically stated that the acid
was not thrown rather it was poured. It was stated that when
she arrived at the place of occurrence, the accused persons
were outraging the modesty of Nibha Kumari. She made her
statement regarding outraging the modesty of her daughter
also to the police. It was stated that when she saw acid in
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hand of co-accused persons, they started to ran away from
the place of occurrence but, in that course only, the injured
were assaulted by lathi and also acid was poured upon. She
did not saw the colour of acid. She also received injury during
occurrence. It was stated that outraging the modesty of Nibha
Kumari was the root cause of the occurrence.
22.2. Upon cross-examination on behalf of
appellant Darshan Kumar, it was stated by her that it was
winter when the present occurrence took place. Her daughter
Nibha Kumari was outraged by accused persons. Upon her
alarm, when she went there, she found accused persons
outraging the modesty of her daughter. They caught the hair
of her daughter and also abusing her. Co-accused Pappu and
Pankaj were present at the place of occurrence at the time of
outraging the modesty of her daughter. She denied that she
has any land dispute with Ram Jiwan Mahto and with any
accused persons. She shown her ignorance regarding
pendency of Title Suit No. 216 of 2016 before learned Sub
Judge-III, Rosera. She denied that Nibha Kumari is relative of
co-accused Pappu and Pankaj. She denied any relation with
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co-accused Ram Jiwan Mahto. She denied the suggestion that
Raghvendra himself made attempt of throwing acid, where
Ram Jiwan Mahto, Binod Mahto, Pappu, Darshan and Pankaj
were tried to save themselves and in that course only, it falls
on the injured Raghvendra. She denied that she lodged
present false case by making her daughter instrumental.
23. PW-7 is Nibha Kumari. She is also one of the
injured, who received acid injury during the occurrence and
the occurrence took shape of present acid attack, which
initiated from her outraging the modesty only as per
prosecution version. It was deposed by her that occurrence
took place on 18.11.2018, on Sunday at about 9:30 A.M.
when Pappu and Pankaj collectively started to outrage her
modesty and when she raised an alarm, the nearby people
rushed to place of occurrence, whereafter, they left and
subsequently, again came back with family members having
lathi, pistol and acid bottles in their hand. She categorically
stated that Binod Mahto, Pappu Kumar, Darshan Kumar and
Pankaj Kumar were equipped with acid bottles. Ram Jiwan
Mahto was equipped with lathi. After arriving at place of
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occurrence firstly, they started to abuse and subsequently,
they started to assault with lathi, where in course of
occurrence, Ram Jiwan Mahto ordered to kill by throwing acid
whereafter, all four accused persons, namely, Binod Mahto,
Darshan Kumar, Pankaj Kumar and Pappu Kumar hold
Raghvendra Kumar (PW-8) and poured acid on his head as a
result of which, his head, ear, neck from both sides back,
chest, right hand were burnt completely. It was deposed that
to save Raghvendra, she along with Rakesh Kumar (PW-2),
Parmila Devi (PW-6), Shobha Kant Mahto (PW-3) went upto
place of occurrence but, acid was thrown upon them. Her
clothes were burnt due to acid attack and she received injury
on her face and leg. She shown burnt leg to court having burn
scar marks. It was deposed by her that Rakesh received injury
on his neck, face etc. It was further deposed that Amerika
Devi also received injury of acid on her right hand and,
thereafter, all injured were brought to Government Sub-
divisional Hospital, Hassanpur from where, she along with
Raghvendra Kumar and Rakesh Kumar referred to Sadar
Hospital, Samastipur from where injured Raghvendra Kumar
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further referred to PMCH, Patna.
23.1. Upon cross-examination, it was stated by her
that she made statement before the police after three days of
the occurrence. It was stated that within a minute, on her
alarm, the persons were gathered over there. It was stated
that she shouted for help during the occurrence. It was stated
that the occurrence of outraging the modesty and acid attack
took place at same place. It was stated by her that she
shouted only when co-accused Pappu and Pankaj touched her
body. It was stated by her that at the time of outraging the
modesty, Pappu and Pankaj were equipped with knife and
pistol not by acid. It was stated by her that she handed over
her paijama and frock to police. Raghvendra was wearing T-
shirt and half paint during the occurrence. Raghvendra was
caught hold by Binod Mahto. It was stated that still one scar is
available on her face, which is above nose. No firing was
made by Ram Jiwan Mahto. She never made statement before
the police regarding any enmities with family of accused
persons. Certain questions were asked to her in question and
answer form, which are as under:-
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that your clothes, leg, face and both legs were burnt?
Ans. Yes. She said it.
Q. No. 28. Whether you shown burnt leg to police?
Ans. Yes. I shown it.
Q. No. 29. Whether Rakesh (PW-2) received burn
injury on his cheek, neck and also his shirt was burnt?
Ans. Yes and same was also said by her to police.
Q. No.30. Whether chest of Rakesh could not burn?
Ans. Yes and this fact was also said by her to police.
Q. No.31. Whether right hand of Amerika burnt due to
acid?
Ans. Yes. This fact was also said by her to police.
Q. No.32. There was land dispute between their
families much prior to this occurrence?
Ans. It was replied as not in her knowledge.
She denied suggestion that she has no knowledge
whether her father Arvind Mahto and one Praveen Mahto filed
a civil suit against Ram Jiwan Mahto and Binod Mahto etc.
which is numbered as Title Appeal No.126 of 2016. She
denied to have knowledge that his uncle Rakesh Kumar (PW-
2), who is doing the business of scraps and having motor
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vehicle. It was stated that acid was in 5-6 vessels.
24. PW-8 is Raghvendra Kumar. He also
supported the date, day and time of occurrence as
18.11.2018 being Sunday, when occurrence took place at
about 9:30 A.M. It was stated that when Nibha Kumari (PW-
7) was going to cattle house, co-accused Pappu and Pankaj
outraged her modesty, upon which, her sister shouted for
help, he went there on alarm. He was followed by his father,
uncle Rakesh Kumar, Amerika Devi, Shobha Kant Mahto,
Preeti Kumari, Swati Kumari, Parmila Devi and Kanchanmala
etc. They collectively opposed it, whereafter, Pappu and
Pankaj firstly went to their house and immediately returned
along with all family members, total of eleven persons,
including Binod Mahto, Pappu Kumar, Darshan Kumar and
Pankaj Kumar, who were equipped with acid vessels. Binod
was also equipped with pistols. Ram Jiwan Mahto, Soni
Kumari, Bandana Kumari, Premshila Kumari, Rampravesh
Mahto, Rekha Kumari and Darshaniya Devi were equipped
with lathi. After arriving at place of occurrence, initially, they
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abused and, thereafter, started to assault with lathi. During
the course of occurrence itself, Ram Jiwan Mahto ordered to
kill all of us by pouring acid, whereafter, Binod Mahto caught
hold by his neck and pushed him down whereafter Pappu
Kumar, Pankaj Kumar and Darshan Kumar poured acid on
him due to which, his head, neck received burn injuries and he
lost his left ear completely. He also received injury in his eye,
cheek, chest, stomach and both hands. The right hand was
completely burnt and was not working. He is unable to move
it. All such injuries are still available on his body, some of
which are still covered with bandage. To save him, Rakesh,
Nibha, Amerika Devi came there but, they also thrown acid on
them resultantly, these three persons also becomes injured,
who were Rakesh Kumar (PW-2) received injuries on his
cheek, neck. Nibha Kumari received injures on her face and
leg and Amerika Devi received injuries on her hand. After the
occurrence, accused persons fled away with empty acid
bottles from place of occurrence. All injured persons including
him were brought first to Primary Health Center, Hasanpur
from where he, Nibha (PW-7) and Rakesh Kumar (PW-2)
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were referred to Sadar Hospital, Samastipur from where he
was further referred to PMCH by considering his serious
condition, where still he is under treatment. He found
difficulty in talking. His neck was also not working due to
injury as he was unable to raise it properly.
24.1. Upon cross-examination, it was stated by him
that before this occurrence, he was a student and was
preparing for competitive examination in Rajasthan. He was
not in inimical terms with any of the accused persons. He was
a student and was not connected in any manner with accused
persons. It was said that he also lost his hearing sense. It was
observed by court that this witness completely lost his ear and
also injury was present on his head, eyebrow, neck etc. Injury
was also available on his fingers. He shown all his body parts
to police, where he received said injury. He also handed over
the clothes to police. It was said that Rakesh Kumar (PW-2) is
his uncle. It was stated that Rakesh is doing business of sale
and purchase of old cars. He denied the suggestion that due
to potato cultivation in disputed land, present occurrence took
place. He categorically stated in his cross-examination also
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that he was bent down by neck by accused Binod Mahto,
Darshan Kumar, Pappu Kumar and Pankaj Kumar. The acid
was poured on his head. The size of bottle was of one bitta.
25. PW-9 is Dr. Arvind Kumar, who was posted
as Medical Officer at Primary Health Center, Hasanpur on
18.11.2018. On that day, at about 11.15 A.M., he treated the
injured Raghvendra Kumar, who was brought by the villagers
of village-Chandrapur. He reached there in injured condition
and he treated the injured. It was stated that injury report of
injured Raghvendra is before him, which was in his
handwriting and prepared by him. He has identified his
signature and signature over the injury report, which was
prepared by him, which upon his identification was exhibited
as Exhibit No. 2’A’. He has identified the signature of
witness on injury report, which upon his identification was
exhibited as Exhibit No.2/1. He has found the following
injury on his person:-
” (1) Lacerated wound on occipital part of skull
1/4″
(2) Abrasion on occipital part of scalp-1″ x 1/4″
on posterior part of scalp
(3) burn scattered on middle of chest- to lower
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(4) Burn scar on posterior part of right shoulder-
1.5″ x 0.5″ x 0.5″
(5) Burn scar mark on right lower-1/rd of right
forearm
(6) Burn scar mark of left of neck-1/2″ x 1/4″ x
1/4″
(7) Burn scattered on right side of neck- 1/2″x
1/4″ x 1/4″.
It was stated by him that patient was referred
to Sadar Hospital, Samastipur, burn unit for treatment and
final opinion. He opined the age of injury of within six hours.
He further stated that he found black Til on front of shoulder
right side of chest region. He opined that the nature of
Injury nos-2,3,4,5,6,7 caused by corrosive substances such
as, acid, rest all are by hard and blunt substances. While
Injury nos.-2,3,4,5,6,7 are simple in nature. He reserved
his opinion on injury no.-1.
He further stated that on same day, at 11:30 AM,
he examined injured Rakesh Kumar (PW-2). It was stated by
him that he has prepared injury report of Rakesh Kumar on
24-11-2018 in his handwriting and also signed on it. He
identified his signature on aforesaid injury report of Rakesh
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Kumar, which upon his identification was exhibited as Exhibit
No.3 and signature of witness over the injury report was
exhibited as Exhibit No.3/1. He found the following injuries
on injured Rakesh Kumar:-
“(1) Injury No.1 scattered burn mark on lateral
aspect of right side of neck-1.5″ x 0.5″ x 0.5”
(2) Injury No.2 Burn scar mark on left side of face-
0.5″ x 0.25″ x 0.25″
(3) Injury No.03 Burn scar mark on right side of
face – 0.5″ x 1/4″ x 1/4″.
(4) Injury No.4 scattered burn posterior aspect of
dorsal aspect of left hand-0.5″ x 1″ x 1/4″
(5) Injury No.5 Burn scar mark on posterior aspect
of right arm – 0.5″ x 1/4″ x 1/4″.”
He further stated that patient was referred to
Sadar Hospital, Samastipur for treatment and final opinion. It
was stated by him that age of Injury is within six hours. He
found a black til on right side of neck. He opined that the
nature of injury nos.1,2,3,4 and 5 are called corrosive
substances. He kept his opinion reserved regarding injury
no.1. Injury nos. 2,3,4 and 5 are simple in nature.
He further stated that on same day, at 11.15 AM,
he examined injured Nibha Kumari and prepared the injury
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report on 24.11.2018. He identified the injury report of Nihba
Kumari, which upon his identification, was marked as Exhibit
No.4. He also identified his handwriting and signature over
the injury report, which upon his identification was exhibited
as Exhibit-4/1. He found the following injuries which are as
under:-
“(1) Injury no.01- scattered burn scar mark on
middle 1/3 of left leg- 0.5″ x 1″ x 1/4”.
(2) Injury no.02 scattered burn scar mark on
lower 1/3 of left leg-0.5″ x 1/4″ x 1/4″.
(3) Injury no.03 – Burn scar mark on posterior
aspect of right elbow- 1/4″ x 1/4″ x 1/4″.
It was stated by him that age of injury is within six
hours. He found a wound scar mark on lateral aspect of right
elbow. He opined that the nature of Injury Nos-1,2,3 are
caused due to corrosive substances such as acid. He found all
injuries are simple in nature.
It was stated by him that he has received
supplementary injury report dated 05.01.2019 of Raghvendra
Kumar @ Munna Kumar, who was treated by him on
18.11.2018 and was referred to Sadar Hospital, Samastipur.
It was stated by him that he found in
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supplementary injury report, total burn surface area -22%,
which shows the nature of injury simple in nature, attached
copy of report given by PMCH, Patna. Supplementary injury
report dt.- 05.01.2019 was prepared by him and he identified
it. On identification of this witness, supplementary Injury
report of Raghavendra Kumar dt.- 05.01.2019 was marked
as Exhibit No.-5 and his signature on it upon his
identification was marked as Exhibit-5/1.
It was further stated by him that he has received
supplementary injury report dated 05.01.2019 of Nibha
Kumari aged 17 years D/o Arvind Mahto At-Chandrapur P.S.-
Hasanpur, Distt.-Samastipur on 18.11.2018 at 11:15 AM,
who was examined and referred to Sadar Hospital,
Samastipur by him. Supplementary Injury report of aforesaid
Nibha Kumari dt.- 05.01.2019 shows old injury report dt.-
24.11.2018. Supplementary injury report of Nibha Kumari
dt.-05.01.2019 was prepared in his handwriting, bearing his
signature. On identification of this witness, supplementary
injury report of Nibha Kumari dt.-05.01.2019 was exhibited
as Exhibit No-6 and his signature on it was exhibited as
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Exhibit No.6/1.
He further deposed that injured Rakesh Kumar in
continuation of injury report dated 18.11.2018, qua injury
No.1 was referred to Sadar Hospital, Samastipur for
treatment and final opinion. The patient was treated in OPD of
Sadar Hospital, Samastipur. He further deposed that patient
had not shown any injury report from Sadar hospital,
Samastipur. No injury report can be provided if any
supplementary report come later on.
He further stated that he has received opinion from
Sadar hospital, Samastipur on 02.02.2019. According to
report given by Dr. P. D. Sharma shows nature of injury as
“simple”.
He further stated that all the reports were prepared
by him, on which the signature of Medical Officers are also
present.
25.1. Upon cross-examination, he deposed that
injured are not present in court and he has not taken
signature of injured. He further deposed that he was unaware
about the nature of acid. It was stated by him that corrosive
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substance if poured on head, then no hair should be left. He
further stated that if someone worn clothes then after pouring
acid, clothes also burnt. He further deposed that when he
treated the injured Raghvendra Kumar, at the time, he was in
full paint and vest (ganji). He has further deposed that he has
turned the clothes for watching the injury. He further stated
that if corrosive substance is poured on body, then it made
skin shrink. He has further deposed that he has not
mentioned about the colour of the injury in injury report. He
further stated that at the time of treatment, injured
Raghvendra was in conscious condition. He further stated that
he has given the age of injury on the basis of statement given
by injured persons. It was deposed by him that he has
received supplementary injury report of PMCH, Patna, which
was annexed with injury report, which is not before him. He
deposed that injuries are simple in nature.
26. PW-10 is Dr. Vimal Rai, who was posted as
Medical Officer at Primary Health Centre on 19.11.2018. He
deposed that Dr. Arbind Kumar was also posted along with
him. He further stated that supplementary injury report dated
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03.01.2019 was in his handwriting and with signature of Dr.
Arbind Kumar, which was before him, upon his identification,
it was exhibited as Exhibit No.7 and signature of Dr. Arbind
Kumar, upon his identification was exhibited as Exhibit
No.7/1. He has further stated that he has examined Amerika
Devi on 19.11.2018 at Primary Health Center, Hasanpur who
came for treatment and upon examination of injured, found
the following injuries:-
“1. Injury no-1 swelling with right forearm with
blacking of skin.
2. Mark of Identification-one mole left side face.
3. Age of injury- within six hours and it may be
possible back and next (with objection from
defence).
4. Time of examination – 04:00 PM
5. Nature of injury is simple caused by hard and
blunt substance-suspicion of some corrosive
substance contact.
He has stated that injury report of injured Amerika
Devi was before him, which was in his handwriting and
signature, upon his identification, the same was exhibited as
Exhibit No.8 and signature over it was exhibited as Exhibit
No.8/1.
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Priti Kumari on 18.11.2018 at Primary Health Centre,
Hasanpur and found the following injuries:-
“1. Injury no-1 Bruise-1 and ½” x 3/4″ over
posterior part of right arm.
2. Injury no-2 Bruise-1 and ½” x 3/4″ over
posterior part of right arm about 3 inch apart from
the injury no-1.
3. Injury no.3 -Tenderness back
4. Mark of Identification – one mole on left side
face.
5. Age of injury is within 36 hours.
6. Time of examination – 04:15 PM
7. Nature of injury – Injury no-1,2 and 3 are simple
caused by hard and blunt substance”.
He has stated that injury report dated 23.11.2018
of injured Preeti Kumari is before him. He has identified his
signature and handwriting on injury report and upon his
identification, it was exhibited as Exhibit No.-9 and his
signature over it was identified as Exhibit No.9/1.
On the same day, he was also examined injured
Pramila Devi, who came to Primary Health Centre for
treatment on 19.11.2018 and found the following injuries:-
“1. Injury no-1 – Tenderness neck.
2. Mark of identification – cut mark over right
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3. Age of injury – within six hours.
4. Time of examination – 4:20 PM
5. Nature of injury is simple caused by hard and
blunt substance”.
On the same day, he examined the injured Kanchan
Mala Devi, who came to Primary Health Centre and found the
following injuries:-
“1. Injury no-1 – Tenderness back.
2. Mark of identification – one mole below
right eye.
3. Age of injury – within six hours.
4. Time of examination – 4:18 PM
5. Nature of injury is simple caused by hard
and blunt substances”.
He has stated that injury report dated 23.11.2018
of injured Preeti Kumari was before him. He has identified his
signature and handwriting on injury report and upon his
identification, it was exhibited as Exhibit No.-11 and
Exhibit No.11/1.
26.1. During cross-examination, he has accepted
that injured are not before him. It was deposed by him that
the injury of injured Preeti Kumari was in pink colour, whereas
injury of injured Amerika Devi was blackish. It was stated by
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him that he guess about the injury on the basis of colour of
injury. It was stated by him that corrosive substance may be
both acid and water of battery. It was stated by him in cross-
examination that expected time of injury may be more than 6
hours or less. It was further stated by him that injury may be
caused due to fall on hard and blunt substance. He further
stated that he was working with Dr. Arbind Kumar.
27. PW-11 is Tunanand Singh, who is
Investigating Officer of this case and was posted as S.I.
Hasanpur Police Station. On 18.11.2018, he received charge
of investigation of present case after lodging of Hassanpur
P.S. Case No.244 of 2018 for the offences punishable under
Sections 147, 148, 341, 323, 324, 326-A, 326-B, 307, 314,
504 and 506 of the IPC. Upon his identification, the formal
FIR was exhibited as Exhibit Nos. 1/2 and 1/3. He visited
the place of occurrence. He did not seized anything relevant
at the place of occurrence. Thereafter, he recorded the
statement of available witnesses, as Arbind Mahto, Parmila
Devi, who supported the occurrence, where Parmila Devi also
stated that she received injuries during the occurrence.
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Thereafter, he raided at different places with armed forces for
arresting the accused persons. He arrested accused/appellant
Darshan Kumar and Ram Jiwan Mahto. He also arrested
accused Binod Mahto. He also recorded the statement of
witness Nibha Kumari, daughter of Arbind Mahto, witness
Rakesh Kumar (PW-2), Amerika Devi, wife of Shobha Kant
Mahto, Preeti Kumari daughter of Arbind Mahto, who
supported the occurrence, being an eye-witness of the
occurrence. He received the injury report of Raghvendra
Kumar @ Munna Kumar, Nibha Kumari, Rakesh Kumar,
Kanchanmala, Preeti Kumari, Parmila Devi and Amerika Devi
and after completion of investigation, he submitted charge-
sheet for the offences under Sections 147, 148, 149, 307,
323, 324, 326-A, 326-B, 341, 354, 504 and 506 of the IPC
against accused Binod Mahto, Darshan Kumar and Ram Jiwan
Mahto through charge-sheet No.205/2018 dated
30.12.2018, which upon his identification, was exhibited as
Exhibit No.17. The signature of police officer was also
identified by him, which upon his identification, was exhibited
as Exhibit No.17/1 and endorsement of the then S.H.O.
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also identified, which upon his identification was exhibited as
Exhibit No.17/2.
27.1. Upon cross-examination, it was stated by him
that the FIR was lodged at about 11.15 P.M. but, he received
information in police station regarding occurrence at about
9.30 A.M. He categorically stated that after visiting the place
of occurrence, he met with injured persons but, he did not
mention it in case diary. He recorded the statement of three
injured persons on 21.11.2018 i.e. after three days of
occurrence. It was stated that he was not informed during
investigation, whether the bottles and clothes were sent for
forensic examination. He did not investigate that there was
any pending land dispute between the parties. He did not find
any smell at place of occurrence when he visited. He did not
made any attempt to record the statement of injured
Raghvendra Kumar within one months and twelve days. It
was stated that he submitted charge-sheet without taking
statement of injured Raghvendra Kumar because he was
under treatment in Patna. He did not have sufficient time to
visit Patna for recording his statement. It was stated by him
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that in written information, there is nothing, which may
suggest that Ram Jivan Mahto was equipped with any
weapons or lathi. He was also not alleged to be thrown acid.
He did not investigated regarding source of acid. He did not
collected any soil, grass, clothes, container/vessels from the
place of occurrence and did not make any seizure list. He
denied the suggestion of defence counsel that in fact he made
an attempt for acid attack but, he received himself injury from
acid during scuffling with accused persons, who were trying
for their self-defence. He received total of seven injury report
between 23.11.2018 to 24.11.2018. It was stated that he
mention in para-9 and 13 of the case diary that he raided the
house of accused persons but, did not find any evidence as to
store the acid bottle.
28. PW-12 is Prabhu Dayal Sharma, who was
posted as Medical Officer at Sadar Hospital, Samastipur on
01.02.2019. On the same day, an opinion regarding injury of
Rakesh Kumar, aged about 32 years, son of Mahendra Mahto,
resident of Chandrapura, P.S.-Hassanpur, District-Samastipur
was given by him. His face and right hand was found burnt
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and it was of simple nature. He identified said injury report,
which was in his hand-writing and bearing signature, which
upon his identification exhibited as Exhibit No.18. His
handwriting was also exhibited as Exhibit No.-18/1. Series
of questions were asked to this witness by learned counsel
appearing for accused, which was recorded by learned trial
court in question and answer form, where by replying
question No.1, it was said by him that injury of Rakesh Kumar
was medically tested by him when he came to him under
reference from PHC (Primary Health Center), Hassanpur. The
second question, which was asked to him was whether he
found the injury of injured as simple in nature and no
corrosive substance was found there as it was not opined
through said injury report? In reply, it was stated by him that
it is true. The third question, which was asked to him that
whether any injury of grievous in nature was found on Rakesh
Kumar and no such report was made available through
Primary Health Centre, Hassanpur and further all injuries
mentioned over there was of simple in nature, where he
replied that same is true. The fourth question which was
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asked to him regarding injury report of Raghvendra Kumar @
Munna, where it was asked that all his injuries were also
simple in nature for which a report dated 05.01.2019 was
produced? In answer, it was replied that he never opined
about the injury of Raghvendra. It appears from question
No.5 that only injured Rakesh Kumar was referred to him. He
denied that he investigated the injury of Raghvendra Kumar.
He did not notice any injury upon Rakesh Kumar except as it
was mentioned in his injury report, which was of burn in
nature. It was stated by him that all injuries, which were
found on Rakesh Kumar was out of burn. It was stated by him
that PHC, Hassanpur has mentioned about the scar mark,
which one is regarding old wound.
29. PW-13 is Dr. Hemant Kumar Singh, who
stated in his examination-in-chief that on 13.07.2019 he was
posted as Medical Officer, Sadar Hospital, Samastipur. On
that day, a Medical Board was constituted in view of letter
dated 08.07.2019 issued by the Civil Surgeon, Samastipur
and letter No. 842 dated 04.07.2019 issued by the
Superintendent of Police, Samastipur under the leadership of
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Dr. A.N. Shahi comprising of Dr. Jaikant Paswan and Dr.
Nagmani Raj and himself. The Medical Board found the
following injuries on the person of injured Raghvendra
Kumar:-
” (1) Healed wound with hypertrophic scar over right
forearm and right upper arm size-15″X4″.
(2) Healed wound with hypertrophic scar over
right shoulder 5″ X 3″
(3) Healed wound with hypertrophic scar
extending from front of neck to the suprapubic
region size-22″x4″ with contraction of the neck
muscles. He is unable to moved his head
completely.
(4) Healed wound with hypertrophic scar over
left occipito parietal region size-6″ x 4″ with
complete loss of left ear pinna.
(5) There is contraction of left angle of mouth
with disfigurement of face.
(6) Healed wound with hypertrophic scar
extending from back of the neck to right
scapular region size 15″ X 5″
(7) Healed wound of left side of forehead 4″ X 3″.
(8) Healed wound right calf 4″ X 2″.”
He stated that the injury was grievous in nature. He
further stated that the report of the Medical Board was in his
pen and signature which also bears the signature of
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Chairman, Dr. A.N. Shahi and the members, namely, Dr.
Jaikant Paswan and Dr. Nagmani Raj, which upon his
identification was exhibited as Exhibit-19.
29.1. During cross-examination, it was stated by
him that he has identified the injured in court, to whom he has
examined. He further stated that he has not received any
letter from Police Station or Primary Health Centre. It was
stated by him that wound was healed. He has stated that
injury nos.2 and 6 are different and injury no. 3, 4 and 5 are
grievous in nature and he has clearly stated that he has not
mentioned the nature of injury to be grievous in the injury
report. It is stated by him that he has left to mention the word
‘move’ due to clerical mistake between the word “unable to –
his head” in injury report. He further stated that he has seen
the injured at the time of examination report and also in the
court. It was stated by him that meaning of the word ‘scar’ is
mark of old wound. He further stated that Dr. H.K. Singh and
Dr. Jaikant Paswan are General Surgeon.
30. PW-14 is Dr. A.N. Shahi, who has stated in
his examination-in-chief that on 13.07.2019 he was posted
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as Medical Superintendent at Sadar Hospital, Samastipur. On
that day, a Medical Board was constituted in view of letter
dated 08.07.2019 issued by the Civil Surgeon, Samastipur
and letter No. 842 dated 04.07.2019 issued by the
Superintendent of Police, Samastipur under his Chairmanship
comprising of Dr. Hemant Kumar, Dr. Jaikant Paswan and Dr.
Nagmani Raj, as members. The Medical Board found the
following injuries on the person of injured Raghvendra
Kumar:-
“1. The alleged acid injury was of 18.11.2018.
(1) Healed wound with hypertrophic scar over
right forearm and right upper arm size-15″x4″.
(2) Healed wound with hypertrophic scar over
right shoulder 5″x3″
(3) Healed wound with hypertrophic scar
extending from front of neck to the suprapubic
region size-22″x4″ with contraction of the neck
muscles. He is unable to move his head
completely.
(4) Healed wound with hypertrophic scar over left
occipito parietal region size-6″x4″ with complete
loss of left ear pinna.
(5) There is contraction of left angle of mouth with
disfigurement of face.
(6) Healed wound with hypertrophic scar
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extending from back of the neck to right scapular
region size 15″x5″
(7) Healed wound of left side of forehead 4″x3″.
(8) Healed wound right calf 4″x2″.”
He stated that the injury is grievous in nature. He
further stated that the report of the Medical Board was in the
pen and signature of Dr. Hemant Kumar Singh as also under
the signature of Dr. Jaikant Paswan and Dr. Nagmani Raj and
himself, which upon his identification has already exhibited as
Exhibit-19. He has stated to indentifying his signature and
upon his identification, it was exhibited as Exhibit-19/1 and
also identified the signature of Dr. Nagmani Raj and Dr.
Jaikant Paswan, which upon his identification, was exhibited
as Exhibit-19/2 and Exhibit-19/3 respectively. It was
stated by him that he has identified the injured, to whom they
have examined, who were present in the Court. He has
further stated that he had taken the signature of injured
Raghvendra Kumar on the injury report (Exhibit-19), which
upon his identification was exhibited as Exhibit-19/4.
30.1. During cross-examination, it was stated by him
that there is no proof regarding the examination of injured
Raghvendra Kumar, who was examined by him on that day. It
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was stated by him that he has not found any injury on the
elbow of the injured. He has accepted that there was no
videography during course of medical test of the injured by
the members of the Medical Board.
31. It transpires from the aforesaid discussion of oral
evidence that three prosecution witnesses have received the
injuries during the occurrence, who are PW-2 Rakesh Kumar,
PW-7 Nibha Kumari and PW-8 Raghvendra Kumar. It appears
from the deposition of PW-2 Rakesh Kumar that appellant
Binod, Darshan, Pappu and Pankaj poured acid on him, which
caused burn injury on his cheek, neck etc. It was also stated
by him that due to acid attack by aforesaid four persons,
Raghvendra Kumar (PW-8) lost his ear completely. Beside
that, he also received burn injuries on neck, head, stomach,
arm and leg. This witness also stated that these aforesaid four
persons were equipped with acid bottle in their hand from
very beginning of the occurrence, which reflect their
preparation and intention qua acid attack. PW-7 Nibha
Kumari, who is also one of the injured out of acid attack,
stated same version that Binod Mahto, Darshan Kumar,
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Pappu Kumar and Pankaj Kumar were equipped with acid
bottle. All these four persons after holding Raghvendra Kumar
(PW-8) poured acid upon him as a result of which, his head,
neck from both sides, chest and right hand were burnt
completely. PW-8 is Raghvendra Kumar, who received more
serious injuries during the occurrence, stated that upon
instigation of Ram Jiwan Mahto, Binod Mahto bent him by
neck and, thereafter, Pappu Kumar, Pankaj Kumar and
Darshan Kumar poured acid upon him as a result of which, he
received burn injury on his head, neck and on ear, which he
lost completely out of said acid attack. He also received injury
in his eye. His chest, back, neck area and stomach also
received acid injuries out of said acid attack.
32. The informant (PW-5) also supported the
occurrence in the same manner that Binod Mahto, Darshan,
Pappu and Pankaj were equipped with acid bottles in their
hands. Upon the instigation of Ram Jiwan Mahto, thrown acid
upon Raghvendra (PW-8), Rakesh Kumar (PW-2) and Nibha
Kumari (PW-7). As per his testimony, Amerika Devi also
received injuries on her head but, she not appears to be
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examined during the course of trial. It appears from his
testimony that out of acid attack, injured Raghvendra
received more serious injuries.
33. It is settled principle of law that until and unless
there is no any compelling circumstances, the testimony of
injured witnesses ordinarily not to be disbelieved, as there is
no any apparent reason for roping the innocent persons in
alleged crime.
34. At this stage, it would be apposite to re-produce
para-25 and 26 of the legal report of Hon’ble Supreme Court
as available through Nand Lal and Others vs. State of
Chhatisgarh [(2023) 10 SCC 470], which is as under:-
“25. We will first consider the issue with
regard to non-explanation of injuries sustained
by Accused 11 Naresh Kumar. In Lakshmi Singh
v. State of Bihar (1976) 4 SCC 394 : 1976 SCC
(Cri) 671], which case also arose out of a
conviction under Section 302 read with Section
149 IPC, this Court had an occasion to consider
the issue of non-explanation of injuries sustained
by the accused. This Court, after referring to the
earlier judgments on the issue, observed thus:
“12. … It seems to us that in a murder
case, the non-explanation of the injuries
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time of the occurrence or in the course
of altercation is a very important
circumstance from which the court can
draw the following inferences:(1) that
the prosecution has suppressed the
genesis and the origin of the occurrence
and has thus not presented the true
version;
(2) that the witnesses who have denied
the presence of the injuries on the
person of the accused are lying on a
most material point and therefore their
evidence is unreliable;
(3) that in case there is a defence
version which explains the injuries on
the person of the accused it is rendered
probable so as to throw doubt on the
prosecution case.
The omission on the part of the prosecution
to explain the injuries on the person of the
accused assumes much greater importance
where the evidence consists of interested or
inimical witnesses or where the defence gives
a version which competes in probability with
that of the prosecution one. In the instant
case, when it is held, as it must be, that the
appellant Dasrath Singh received serious
injuries which have not been explained by the
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prosecution, then it will be difficult for the
court to rely on the evidence of PWs 1 to 4
and 6, more particularly, when some of these
witnesses have lied by stating that they did
not see any injuries on the person of the
accused. Thus neither the Sessions Judge nor
the High Court appears to have given due
consideration to this important lacuna or
infirmity appearing in the prosecution case.
We must hasten to add that as held by this
Court in State of Gujarat v. Bai Fatima
[(1975) 2 SCC 7] there may be cases where
the non-explanation of the injuries by the
prosecution may not affect the prosecution
case. This principle would obviously apply to
cases where the injuries sustained by the
accused are minor and superficial or where
the evidence is so clear and cogent, so
independent and disinterested, so probable,
consistent and creditworthy, that it far
outweighs the effect of the omission on the
part of the prosecution to explain the
injuries. The present, however, is certainly
not such a case, and the High Court was,
therefore, in error in brushing aside this
serious infirmity in the prosecution case on
unconvincing premises.
26. A similar view with regard to non-
explanation of injuries has been taken by
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this Court in State of Rajasthan v. Madho
[1991 Supp (2) SCC 396], State of M.P. v.
Mishrilal, [(2003) 9 SCC 426] and
Nagarathinam v. State, (2006) 9 SCC
57]".
35. One of the submissions of learned counsel
appearing for the appellants is that all witnesses are
interested witnesses and, therefore, their testimony should
not be accepted but, as the version of injured witnesses who
are related to each other are so clear, cogent and credible that
there is no reason to discard the same, on this score.
36. At this stage, it would be apposite to re-
produce para-30 of the legal report of Hon’ble Supreme Court
as available through Balraje @ Trimbak vs. State of
Maharashtra [(2010) 6 SCC 673], which is as under:-
“30. In law, testimony of an injured
witness is given importance. When the
eyewitnesses are stated to be interested and
inimically disposed towards the accused, it has to
be noted that it would not be proper to conclude
that they would shield the real culprit and rope in
innocent persons. The truth or otherwise of the
evidence has to be weighed pragmatically. The
court would be required to analyse the evidence
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inimically disposed towards the accused. But if
after careful analysis and scrutiny of their
evidence, the version given by the witnesses
appears to be clear, cogent and credible, there is
no reason to discard the same. Conviction can be
made on the basis of such evidence.”
37. This Court further finds that any faulty
investigation or delay in medical examination in present case
is not helping the convict/appellant in view of clear-cut,
cogent and consistent testimony of three injured witnesses
i.e. PW-2, PW-7 and PW-8. Disbelieving the occurrence solely
on the ground that the investigation was faulty would amount
to only adding insult to the injury received by the injured.
38. At this stage, it would be further apposite to
re-produce para-13 of the legal report of Hon’ble Supreme
Court as available through Ram Bihari Yadav vs. State of
Bihar and Ors. [(1998) 4 SCC 517], as cited by learned
counsel for the informant, which is as under:-
“13. Before parting with this case we
consider it appropriate to observe that though
the prosecution has to prove the case against
the accused in the manner stated by it and that
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prosecution giving rise to any reasonable doubt
would go in favour of the accused, yet in a case
like the present one where the record shows that
investigating officers created a mess by bringing
on record Exh. 5/4 and GD Entry 517 and have
exhibited remiss and/or deliberately omitted to
do what they ought to have done to bail out the
appellant who was a member of the police force
or for any extraneous reason, the interest of
justice demands that such acts or omissions of
the officers of the prosecution should not be
taken in favour of the accused, for that would
amount to giving premium for the wrongs of the
prosecution designedly committed to favour the
appellant. In such cases, the story of the
prosecution will have to be examined dehors
such omissions and contaminated conduct of the
officials otherwise the mischief which was
deliberately done would be perpetuated and
justice would be denied to the complainant party
and this would obviously shake the confidence of
the people not merely in the law-enforcing
agency but also in the administration of justice.”
39. It would be also apposite to re-produce para-6
of the legal report of Hon’ble Supreme Court as passed in the
matter of Karnel Singh vs. State of M.P. [(1995) 5 SCC
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518], cited by learned counsel for the informant, which is as
under:-
“6. We must admit that the defective
investigation gave us some anxious
moments and we were at first blush
inclined to think that the accused was
prejudiced. But on closer scrutiny we have
reason to think that the loopholes in the
investigation were left to help the accused
at the cost of the poor prosecutrix, a
labourer. To acquit solely on that ground
would be adding insult to injury.”
40. One of the important submission which was
raised during the argument that the medical examination
upon the most serious injured, who is PW-8 Raghvendra
Kumar was done after about one year and three months,
where except scar mark, nothing was found and as such
injury appears remotely connected with crime in question.
41. In this context, it would be apposite to
reproduce Exhibit-20, which is the order of this Hon’ble High
Court dated 15.05.2019, which was passed when the
appellant Darshan Kumar, Binod Mahto and also Pappu
Kumar approached this Court for their bail. The relevant part
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of Criminal Misc. No.14945 of 2019 dated 15.05.2019 is
required to be reproduced hereinbelow that how after
interference of this Court injured PW-8 (Raghvendra Kumar)
was examined medically, which is as under:-
“On physical look at Raghvendra Kumar in
open Court, it is imperative on this Court to
exercise power under Section 482 of the Cr.P.C.
and to direct the Principal Secretary, Department
of Health, Government of Bihar, Patna to
constitute a committee of Three Specialized
Doctors for burn injuries to immediately examine
the injuries on the person of the victim aforesaid
and to submit a report within four weeks from
today and this Court as well as to the
Superintendent of Police, Samastipur in
connection with the aforesaid police case and the
Superintendent of Police, Samastipur is directed
to submit the said report to the trial Court,
according to law.
Let a copy of this order be handed over to Mr.
Abahy Kumar Roy, learned Additional Public
Prosecutor for needful.”
42. Considering the aforesaid order, the prayer of
bail of Pappu Kumar was also rejected by this Court through
Cr. Misc. No.59553 of 2019 dated 21.10.2019, which is
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Exhibit-20/1, wherein the Hon’ble Court pleased to direct the
Principal Secretary, Government of Bihar, Patna to constitute
a committee of three doctors having specialized knowledge
qua burn injury to examine the injuries on the person of the
victim and also to submit a report within four weeks.
43. After aforesaid interference of Hon’ble High
Court in judicial side, the exact injuries of injured was brought
on record. From the facts, it appears that initially injury report
was not prepared by the concerned doctor correctly and it was
only after the interference of the High Court, looking the
physical condition of the injured (PW-8), a special team was
constituted, which was the only reason for delaying the
medical report, showing scar mark only. Any benefit if be
given out of such delay to accused persons would only amount
to approval of such wrong practice, as to win over the
witnesses. People must realize that the rule of law must stand
above, which cannot be managed by means of money or
influence, as it happened in present case in collusion with
concerned persons like doctor and police, who are otherwise
duty bound to place correct evidence before the court as to
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assist in imparting justice to persons, who are the victim of
crime.
44. Considering the aforesaid circumstances, this
Court did not find any force in the submission of learned
counsel appearing for appellants qua delayed medical
examination of injured persons, which was done by
specialized team of doctors in furtherance of aforesaid orders
of this Court by exercising its extra-ordinary power as
available through Section 482 of the Cr.P.C.
45. In view of aforesaid facts and circumstances,
the appeal appears devoid of any merit and, accordingly,
same stands dismissed.
46. Office is directed to return back the Trial Court
Records along with a copy of the judgment to the trial Court
forthwith.
(Chandra Shekhar Jha, J.)
Sanjeet/-
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