Rajasthan High Court – Jaipur
Saleem vs State on 9 April, 2025
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
[2025:RJ-JP:15212] (1 of 12) [CRLA-133/1989]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 133/1989
Saleem S/o Ramjan Khan R/o House no.695, near Moti Maszid,
Ramganj Bazar, Jaipur
----Accused-Appellant
Versus
The State of Rajasthan
----Respondent
Connected With
S.B. Criminal Appeal No. 216/1989
State of Rajasthan
—-Appellant
Versus
Saleem S/o Ramjan R/o House no.695, near Moti Maszid,
Ramganj Bazar, Jaipur (Rajasthan)
—-Accused- Respondent
For Appellant(s) : Mr. Mohammed Anees
For Respondent(s) : Mr. Vivek Choudhary, PP
HON’BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
Judgement Reserved on :: 25/03/2025
Judgement Pronounced on :: 09/04/2025
These criminal appeals are directed against the judgment
dated 31.03.1989 passed by the learned Additional Sessions
Judge No.5, Jaipur City, Jaipur (for brevity, “learned trial Court”) in
Criminal (Sessions) Case No.61/1987 whereby, while convicting
the accused-appellant (for brevity, “appellant”) under Section 326
IPC, he has been sentenced as under:
“Two years and six months’ rigorous imprisonment and
Rs.200/- fine; in default whereof, six months simple
imprisonment”.(Downloaded on 09/04/2025 at 10:09:12 PM)
[2025:RJ-JP:15212] (2 of 12) [CRLA-133/1989]The relevant facts in brief are that on a written report
dated 13.07.1987 (Ex.P2) lodged by Shri Khan Mohammed with
the Police Station Manak Chowk, Jaipur, an FIR dated 13.07.1987
(Ex. P3) under Sections 307 and 324 IPC came to be registered
wherein, it was alleged that in the night at about 1:00-1:30 am,
some unknown person threw acid on the body of his brother-Phool
Mohammed and Saleem also informed him that an unidentified
person has attacked him as also Shri Phool Mohammed with acid.
After investigation, charge-sheet was filed against the
appellant under Sections 324, 326 and 307 IPC. However, charge
only under Section 307 IPC was framed. The appellant pleaded not
guilty and demanded trial.
After trial, the learned trial Court has, while acquitting the
appellant from the charge under Section 307 IPC, convicted and
sentenced him, vide judgment impugned dated 31.03.1989, in the
manner stated hereinabove.
The appeal no.133/1989 has been preferred by the appellant
challenging his conviction whereas, the appeal no.216/1989 has
been preferred by the State for enhancement of the sentence
awarded to him.
Assailing the impugned judgment, learned counsel for the
appellant submitted that findings of the learned trial Court are
based on presumptions and assumptions. He submitted that while
convicting him, the learned trial Court did not appreciate that
there was no legally admissible evidence available on record to
connect him with the alleged offence. Learned counsel submitted
that although, the alleged eyewitnesses S/Shri Mangu Singh
(PW8) and Ratan Lal (PW15) are Constables; still, they neither
apprehended the appellant at the place of incident nor, they
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[2025:RJ-JP:15212] (3 of 12) [CRLA-133/1989]lodged the FIR after the incident which raises a serious doubt
about veracity of their statement. He, therefore, prayed that the
appeal be allowed, the judgment impugned dated 31.03.1989 be
quashed and set aside and the appellant be acquitted from the
charge.
Opposing the prayer, learned Public Prosecutor submitted
that findings of the learned trial Court, while recording conviction
of the appellant, are based on cogent material on record which
warrant no interference. He, therefore, prays for dismissal of the
appeal.
Advancing the prayer made in the appeal no.216/1989
preferred by the State, learned Public Prosecutor submitted that
since, it is a case of acid attack wherein, the victim has suffered
grievous injuries, looking to the gravity of the offence, the
sentence awarded to the appellant by the learned trial Court is on
very low side which requires to be enhanced suitably.
Heard. Considered.
Insofar as the acid attack on the victim-Shri Phool
Mohammed is concerned, from the evidence available on record in
the shape of testimony of Shri P.C. Vyas (PW14) who has
examined the victim and has prepared the injury report (Ex. P19)
and from the statement of the appellant recorded under Section
313 CrPC, it is established beyond doubt that he suffered injuries
on account of it.
Now, the moot question for consideration of this Court is
whether the prosecution has been able to establish beyond
reasonable doubt that the appellant is guilty of the aforesaid acid
attack.
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[2025:RJ-JP:15212] (4 of 12) [CRLA-133/1989]
The injured-Shri Phool Mohammed has stated as PW10 that
in the midnight of 12-13 July, 1987, when he was sleeping at
about 1:00-1:30 pm at his cycle shop in Chaura Rasta, Jaipur, he
felt burning sensation and found the appellant standing before him
when he woke up. He has alleged that acid was thrown upon him
by the appellant. In his cross-examination, he states that he did
not inform any person reaching the spot that the appellant has
attacked him with acid. He has also averred that he has informed
his elder brother-Khan Mohammad that the appellant has thrown
acid upon him but, feigned ignorance when confronted as to why it
was absent in his statement recorded under Section 161 CrPC (Ex.
D3). He has also admitted in his cross-examination that when the
acid was thrown upon him, he was in deep slumber.
From the aforesaid testimony, it is apparent that the victim
has not seen the appellant throwing acid upon him; rather, found
him standing in front of him immediately after it.
The learned trial Court has relied upon testimony of two eye
witnesses to record conviction of the appellant namely; S/Shri
Mangu Singh (PW8) and Ratan Lal (PW15). Both the witnesses are
Police Constables and were on night duty at the relevant time in
Chaura Rasta, Jaipur, the place of incident. In view of the
statement of Shri Madan Lal (PW5), a Constable who has exhibited
and proved the daily diary (rapat rojnamcha) (Ex. P10), it is
established that both these Police Constables were on duty around
the place of incident at the relevant time. The question is whether
they have seen the appellant attacking the victim with acid, as
claimed. While, Shri Mangu Singh has deposed that he saw the
appellant throwing acid from a bottle upon the victim, Shri Ratan
Lal has stated that he saw the appellant throwing something upon
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[2025:RJ-JP:15212] (5 of 12) [CRLA-133/1989]
Phool Mohammed. However, as per their testimony and from the
other evidence available on record, it is evident that neither they
apprehended the appellant despite him being an accused of acid
attack nor, either of them lodged the First Information Report nor,
they have lodged the report/even reported the ghastly crime when
they reached the police station after completion of their night duty
as is established from the Ex. D1, the rapat rojnamcha dated
13.07.1987 prepared at 4:00 am as also from the testimony of
Shri Madan Lal (PW5), a Constable in the Police Station Manak
Chowk, who stated in his cross-examination that after their
return, both the Constables (PW8) and (PW15) did not lodge any
report. It also falsifies their statement made during their cross
examination that on their return, they have reported the matter
which was recorded in the rapat rojnamcha (Ex.D1). It was highly
unnatural conduct on the part of these two Constables.
Shri Mangu Singh has further stated in his cross-examination
that they did not send anybody to the police station to lodge the
report; but, the SHO himself had arrived at the place of incident at
about 1:30 am and when they left the place of incident for police
station (at about 4:00 am), two Constables were left behind by
the SHO out of whom one was Shri Hanuman Singh. He has
further stated that they had informed the SHO about the incident.
On the contrary, Shri Ratan Lal (PW15) has stated in his cross
examination that the SHO came to the place of incident at dawn
and on investigation, they had informed him that Salim has
thrown something on Phool Mohammed. However, as per his
statement recorded under Section 161 Cr.P.C. (Ex.D1) and other
evidence available on record, it is evident that they had already
returned to the Police Station at 4.00 am i.e. before dawn.
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[2025:RJ-JP:15212] (6 of 12) [CRLA-133/1989]
Interestingly, the SHO Shri Vinit Kumar has made not a whisper of
averment about the aforesaid happenings during his deposition as
PW2 wherein, he simply says that the written report (Ex.P2) was
submitted before him whereupon, the FIR (Ex.P3) was lodged,
investigation was handed over to Shri K.C. Chand, S.I. and he
filed charge sheet against the appellant.
Further, the incident has happened in the intervening night of
12-13th July, 1987, as per the prosecution case, in presence of
S/Shri Mangu Singh and Ratan Lal, the Police Constables of the
jurisdictional Police Station. They both have returned to the Police
Station in the morning of 13.8.1987 at about 4 am after
completion of their night duty. The site plan (Ex.P16) was
prepared by the Investigating Officer in presence of and on
identification by Shri Mangu Singh and as per the cross
examination of Shri Ratan Lal (PW15), he was also present at that
time and had informed the SHO about the place from where they
have witnessed the incident; however, Shri Kesri Chand (PW17),
the investigating officer says that till preparation of the site plan,
he was unaware as to whether there was any eyewitness to the
incident. Further, statement of S/Shri Mangu Singh and Ratan Lal
under Section 161 Cr.P.C. (Ex.D2) and (Ex.D6) respectively, were
recorded not on 13.7.1987 but, on next date, i.e., dated
14.7.1987. Although, the Investigating Officer has attempted to
offer an explanation for this delay during his cross examination as
PW17 that he was busy in another duty; but, he has conducted a
substantial part of the investigation on 13.7.1987 as is apparent
from the site plan and other documents available on record and
exhibited by the prosecution. Therefore, the prosecution has failed
to offer any plausible explanation as to why statement of the only
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[2025:RJ-JP:15212] (7 of 12) [CRLA-133/1989]
two eye witnesses was not recorded promptly which was
imperative looking to the gravity of the offence.
There is one more important aspect of the matter. Although,
both these witnesses have claimed to have seen the appellant
throwing acid upon the victim; but, as per their deposition, they
have sent both; the complainant as well as the accused, in the
same Auto-rickshaw to the hospital without any person
accompanying them. When confronted during the course of cross
examination as to why the victim was sent to the hospital along
with the appellant, no explanation was offered by them.
In view of the aforesaid evidence, especially the highly
unnatural conduct of these two prosecution witnesses, as
discussed hereinabove which raises a serious doubt about the
veracity of their statement, in the considered opinion of this court,
it was not safe to record conviction of the appellant merely on
their testimony.
Further, the learned trial Court has relied upon the deposition
of S/Shri Ashok Kumar (PW11) and Bal Bahadur (PW13) as they
have reached the place of incident soon after/ alongwith S/Shri
Mangu Singh and Ratan Lal. From their testimony, it is established
that although, S/Shri Ashok Kumar and Bal Bahadur have reached
the place of incident immediately after the acid attack; but, have
not seen the appellant throwing acid upon the victim. In view
thereof, their testimony also is not of much help to the
prosecution as none of them has, indisputably, seen the appellant
throwing the acid upon the victim. They merely corroborate that
the appellant was present at the place of incident, a fact admitted
even by the appellant himself. However, its implication would be
considered later on. Therefore, the learned trial Court has erred in
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[2025:RJ-JP:15212] (8 of 12) [CRLA-133/1989]
relying upon their testimony on the premise that they are
independent witnesses having no interest in the victim Phool
Mohammed and no enmity with the appellant.
So far as testimony of Shri Babu (PW16) is concerned, from
his deposition, a possibility cannot be ruled out that he is a
planted witness. He states in his examination-in-chief that at
about 7:00 pm on 12.07.1987, the appellant visited him and
demanded colour for his brother (a painter who used to purchase
paint from the witness) as also sulfuric acid whereupon, he gave
to the appellant alongwith the colour, 250 grams of sulfuric acid in
a wide opened white bottle. From his cross-examination, it is
revealed that it was not for the first time that the appellant has
purchased the colour/acid from him. Conspicuously, his statement
was recorded on 01.08.1988 i.e. after more than a year from the
date of incident and in view thereof, the vivid description about
the precise time, the date, the exact quantity of the acid and the
explicit details of the bottle in which it was sold, raises a serious
doubt about the genuineness of the statement and he appears to
be, as already observed, a planted witness by the prosecution.
Moreover, the leaned trial Court has held that the prosecution has
failed to establish that the glass bottle recovered by it from the
place of incident was used by the appellant in commission of the
offence. In view thereof, the learned trial court erred in relying
upon his testimony in recording conviction of the appellant.
The remaining prosecution witnesses are either formal
witnesses or did not depose any material evidence to connect the
appellant with the alleged offence.
A perusal of the judgment impugned dated 31.03.1989
reveals that much emphasis has been given by the learned trial
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[2025:RJ-JP:15212] (9 of 12) [CRLA-133/1989]
Court to the fact that the appellant has failed to establish his plea
recorded under Section 313 Cr.P.C. wherein, he has stated that at
the time of incident, when he was returning after watching a
movie, his cycle did not have air in it and when he was standing
on the footpath to fill in the air, an unknown person threw acid
upon him as also on the victim Shri Phool Mohammed whereupon,
he called for S/Shri Mohan and Ashok who sent them to the
hospital. It was held by the learned trial Court that since the
appellant has failed to establish that some unknown person had
thrown acid upon him as also on the victim, an adverse inference
was liable to be drawn against him. In the considered opinion of
this Court, this approach is not tenable. As already observed, the
prosecution has not been able to establish, beyond reasonable
doubt, that the appellant attacked the victim with acid. Further,
from the evidence available on record, the plea taken by the
appellant could not have been brushed aside in a cursory manner.
Shri Mangu Singh (PW8) has stated in his examination-in-chief
that when they found the appellant sitting near the place of
incident at about 1:00 am, on asking, he said that the air was to
be filled in the cycle. Further, during his cross-examination, he has
admitted that before throwing acid, the appellant has picked up
the pump to fill in the air and while, he was filling in the air, the
witness did not see any bottle in his hand. Shri Bal Bahadur has
also said during his cross-examination as PW13 that he has seen
that an air pressure pump was attached to tyre of the cycle at the
place of incident at the relevant time. Shri Ratan Lal has also
deposed as PW15 that on asking, the appellant informed that he
had gone to watch a movie and the air was to be filled in the
cycle. This part of the plea of the appellant is corroborated from
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[2025:RJ-JP:15212] (10 of 12) [CRLA-133/1989]
the site plan (Ex. P16) which reflects that at place “B”, there was a
cycle with pump attached to its rear tyre. This is also corroborated
from the photograph (Ex.7) submitted by the prosecution. Shri
Prem Narain Sharma (PW1), the Sub-Inspector and finger print
expert, has also stated in his deposition that there were acid
marks on the cycles and air pressure pump. Moreover, in the First
Information Report (Ex. P3) based on the written report (Ex. P2)
lodged by brother of the victim immediately after the incident, it is
categorically stated that the appellant informed that when he was
filling in the air in the cycle after watching a movie, an unknown
person attacked him as also the victim with acid whereupon, he
called S/Shri Ashok and Mohan. The appellant has also stated in
his plea recorded under Section 313 Cr.P.C. that after the acid
attack, he called for S/Shri Mohan and Ashok. While, Shri Mohan
was not examined as a prosecution witness, Shri Ashok has
categorically stated during his examination-in-chief as PW11 that
while he was sleeping on the roof of his house at about 1:00-2:00
am, he heard somebody crying his and his elder brother’s name.
Shri Phool Mohammed (PW10), the victim, does not say that he
cried for S/Shri Ashok and Mohan. As per the first version
available on record, it was the appellant who cried for their name
immediately after acid attack which lends credentials to his
statement. Thus, the substantial part of the plea of the appellant
recorded under Section 313 Cr.P.C. stands substantiated from the
evidence on record. Merely because the appellant has not been
able to establish his remaining part of the plea that some
unknown person threw acid, it could not have been presumed that
his plea was totally imaginary and unacceptable in view of the
evidence discussed hereinabove. Further, the aforesaid evidence
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[2025:RJ-JP:15212] (11 of 12) [CRLA-133/1989]
casts a shadow of doubt on the veracity of the prosecution
evidence. In this regard, the learned trial court has erred in
drawing an inference that since the appellant has failed to
establish his plea that some unknown person threw acid upon the
victim, it is the appellant who has done so ignoring the settled
principle of law that the prosecution has to prove its case beyond
reasonable doubt to warrant conviction and reverse burden is not
upon the accused.
Further, neither it is case of the prosecution that the
appellant fled from the place of incident after the acid attack nor,
it is revealed from the evidence on record. Rather, both; the
appellant as also the victim, had gone to the hospital in the same
auto-rickshaw without any other person accompanying them. Even
after reaching the hospital, the appellant did not flee as, the
complainant Shri Khan Mohammad (PW2) has stated in his
written report (Ex.P2) that the appellant informed him that an
unidentified person has attacked both. The appellant does not
have any criminal antecedent and is not a hardened criminal and
in view thereof, had the appellant committed the heinous crime of
throwing acid upon the victim, the natural instinct would have
impelled him to flee from the place of incident.
From the conspectus of the aforesaid discussion, this Court is
not convinced that the prosecution has been able to prove beyond
reasonable doubt that the appellant threw acid upon the victim
resulting into grievous injuries. Accordingly, the appeal
no.133/1989 preferred by the appellant is allowed, the judgement
impugned dated 31.03.1989 passed by the Additional Sessions
Judge No.5, Jaipur City, Jaipur is quashed and set aside and the
appellant is acquitted from the charge under Section 326 IPC. His
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[2025:RJ-JP:15212] (12 of 12) [CRLA-133/1989]
sentence is already suspended since 13.04.1989 and, therefore,
his bail bonds are discharged. He need not surrender. The appeal
no.216/1989 preferred by the State for enhancement of the
sentence stands, consequently, dismissed.
In view of the provisions of Section 481 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, the appellant namely Saleem S/o
Ramjan Khan is directed to furnish a personal bond in the sum of
₹25,000/-, and a surety in the like amount before the Registrar
(Judicial) of this Court which shall be effective for a period of six
months with the stipulation that in the event of Special Leave
Petition being filed against the judgment or on grant of leave, the
appellant aforesaid, on receipt of notice thereof, shall appear before
the Hon’ble Supreme Court.
(MAHENDAR KUMAR GOYAL),J
RS /2-3
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