P.N. Khanna and S.N. Andley, JJ.
(1) Mewa Lal accused, respondent in this appeal, was charged to stand trial un- der section 326 Indian .Penal Code for voluntarily causing grievous hurt to Miss Gita daughter of Mr. B.N. Lal by means of acid, a corrosive substance. The learned Assistant Sessions Judge, Delhi, giving the benefit of doubt, acquitted the accused of the offence charged.
(2) According to the prosecution, on the night 18th and 19th May, 1966 at about 1.30 A. M. Kumari Gita was sleeping along with Kumari Soni, Public Witness , her cousin, on the same cto on a raised platform at the back of quarter No 613 Sarojini, Nagar New Delhi. Her grand-mother, maternal grand-mother, H. /uncle .Sham. Lal, Public Witness , and Sham Lal's wife were also Sleeping on other charpoys around her. Her parents were sleeping on the front side of the quarter. At about 1.30 A.M., being aroused by the sound of approaching footsteps, Gita saw the accused Mewa Lal standing on the leftside of her cto and before she could raise a cry, the accused threw acid on her face. Kumari Gita felt a burning sensation and raised an alaram. Soni Public Witness , her cousin, also felt a burning sensation on her feet. This attracted her uncle Sham Lal, Public Witness The accused ran away and Sham Lal and B N. Lal, who tried to give a chase, were unsuccessful in catching him Gita was removed to Safdarjang Hospital where she was medically examined and admitted. B.N. Lal, her father thereafter, went to the Police Station, Vinay Nagar and lodged the report Ex. P. W. 7/A, at about 5 A M., upon which formal F.I.R., Ex. P. W. 10A, was recorded by Jai Lal Singh A S. I. Investigation was completed by P. W. 10, Ram Narain, A. S. I., who recorded the statement of the witnesses, prepared the site plan and challaned the accused under section 307 Indian Penal Code. The accused was arrested on 19th May, 1966 from his Sadar Bazar Shop by Inspector Ajmer Singh between 6 and 7 P. M.
(3) The accused was committed and ultimately charged under section 326 Indian Penal Code.
(4) The learned Assistant Sessions Judge framed the following points for determination:
1. Whether the liquid thrown on the face of Kumari Gita was acid? 2. Whether Kumari Gita sustained grievous hurt as a result thereof? 3 Whether the said liquid was thrown by Mewa Lal accused on her face?
(5) On the first question, he came to the conclusion that the liquid thrown on the face of Gita was acid The question, as to whether the injuries sustained amounted to grievous hurt, was answered by him in the affirmative. In respect of the third question, he concluded that the accused appeared to have been implicated on suspicion and that the prosecution version was nto proved by any reliabl and unimpeachable evidence to be true. He, thereforee, gave the benefit of doubt to the accused and acquitted him of the charge.
(6) Mr. Bishanibar Dayal, learned counsel for the State, submits that the conclusions arrived at by the learned Assistant Sessions Judge are most unreasonable and are liable to be set aside. The guilt' of the accused, according to him, has been fully established and he submits, thereforee, that he should have been convicted.
(7) We will take up the third question first, as to whether Mewa Lal accused, threw the liquid complained of, on the face of Gita P. W. 4. The lower Court has found - (a) that Mewa Lal accused belonged to the Biradari of B. N. Lal; (b) that he attended the marriage of Krishna, the daughter of B. N. Lal ; (c) that the accused made certain indecent remarks about Gita P. W. at the time of the said marriage which were resented by her; (d) that there is nodoubt that on the night of occurrence, some liquid was thrown on the face of Gita P. W. 4 and that she raised a cry; and (e) that Gita P. W. 4 was admitted to the hospital the same night where she was treated. 508
(8) How, then, is the accused Mewa Lal conneoted with the occurrence of throwing the liquid on Gita? For this purpose, the prosecution placed reliance on three eye-witnesses, Soni, P, W. 5, Sham Lal. P. W. 6, and Gita, P. W. 4. The learned Assistant Sessions Judge has dischrgded the statement of Soni, P. W. 5, as she, although declared hostile and confronted with her statement recorded in the Police Station, which too, remained unproved, stated that she saw a boy running away, whom she could nto identify nor did she know his name. She has stated that she does nto know Mewa Lal accused at all. According to her, the occurrence did take place but she cannto say as to who was the culprit.
(9) The learned Assistant Sessions Judge has refused to believe the version of Sham Lal, P. W. 6, as he considered it unnatural and unreasonable that if P. W. 6 had really seen the accused running, why he along with B. N. Lal could nto catch him, without going any further into the question of the credibility of Sham Lal, P. W. 6. we are left with the statement of Gita P. W. 4, the only remaining eye-witnesses relied upon by the prosecution. The learned Assistant Sessions Judge recognises that section 134, Evidence Act. enshrines the well-known maxim that 'evidence is to be weighed and nto counted' and further notes that as held in Harbans Singh v. The State of Punjab and various other authorities, the conviction can be based on the testimony of a single witness if he is credible. He, however, held that the statement of Gita P. W. 4 fell short of the standard and could nto safely be relied on. Her version has been discarded by the learned Assistant Sessions Judge on two grounds :- (1) She, in her statement at the trial, has made improvements in material points over her statement before the Committing Court ; and (2) her version of having seen the accused is nto supported by medical evidence.
(10) The learned Assistant Sessons Judge, while dealing with ground No. 1, says-
'BESIDES,cross-examined. Miss Gita (P W. 4) deposed having stated before the committing Court in her statement :- 1. That her uncle and Soni had seen the accused at her bedside. 2. That the accused was from their Briadrai and a frequent visitor. 3. That on 2nd May, 1966, he came to their house and misbehaved. 4. That she could nto see anything with the accased because she was sleeping on a raised platform and only the upper portion of the accused was visible. 5. That she remained in the hospital from 19th May, 1966 to 9th June. 1966. 6. That she might have stated before the committing Magistrate that the accused along with 2 or 3 other persons came to her on 2nd May, 19 6 and misbehaved Which facts appear nto to have been stated by her in her statement before the committing Court, with which she was confronted. For the prosecution it was contended that these were mere ommissiand the confrontation with the previous statement was nto permissible and these could nto be read in evidence as she could be contradicted with her previous statement only if the same were different from the statemement made by her daring trial. Reliance was placed for it on 1959 SC 1012 and 1962 Sc 1821 which support the contention of the prosecution and as such it cannto be said that on account of these confrontations she is a liar. But as was contended for the defense this certainly shows that by stating as above she intended to improve upon her earlier stand and on the prosecution version.'
(11) To me, the objection to the credibility of the witness, on this ground, appears to be hardly justified The six instances of so-called improvement on her earlier statement can hardly be said to be material points. Gita P. W. 4 is definite that it was the accused who had thrown the liquid on her. Why should she implicate the accused unless he was actually there? The incidents at the marriage of her sister were nto such as would prompt her to shield the real culprit if he was some person other than the accused and to implicate the accused instead. Why did she nto name any other person?
(12) The second ground is equally devoid of any basis. The learned Assistant Sessions Judge ignored the natural human instinct, which clases the human eye, without the person concerned even being conscious of it, whenever any object threatens to come to contact with it. The approach of any foreign material makes the eye-lids automatically form a shield of protection over the eye-ball. So, the statement of P. W. 4 that her eye were open and that she could see the accused throwing the acid cannto be discarded merely because her eye-balls have remained uninjured and the upper eye-lids were involved in an area of Erythema on a part of the face, showing that the eyes were closed at the time when the liquid thrown came in contact with her face. The instantaneous wink of the eyes to provide a shield to the eye-balls from the onslaught of the splashing liquid, coming towards her face, and about which she may nto be even conscious, can nto prevent her from having seen the accused. The conclusions to the contrary drawn by the Court below can have no justification.
(13) The judgment of the Court below, under the circumstances, discarding the sworn testimony of Gita P. W. is completely unreasonable. We are convinced that Mewa Lal accused was the person who had thrown the liquid on Gita's face and his guilt in this connection stands established.
(14) Mr. Kalia, learned counsel for the accused respondent has drawn our attention to the case of Balbir Singh v. State of Punjab,and Hurbans Singh and another v. The State of Punjab. In Harbans Singh and a other v. The State oj Punjab, it was observed that- 'In emphasising in many cases the necessity of 'compelling reason' to justify an interference with an order of acquittal the Court did nto in any way try to curtail the power bestowed on appellate Courts under s. 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the fact that in many systems of jurisprudence the law does nto provide at all for any appeal against an order of acquittal the Court was anxious to impress on the appellate courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As it has already been pointed out less emphasis is being given in the more recent pronouncements of this Court on 'compelling reasons.' hut, on close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may he called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of appeal must examine the evidence with particular care, must exarnine also the reasons on which the Older of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a 'compelling reason' for interforence. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is nto so established.'
(15) A reference may also he made to the judgment of the Supreme Court in Laxman Kalu Nikalje v. The State of Maharashtra, wherein it was held that- 'We may say here that it is now the settled law that the powers of the High Court in an appeal against the acquittal are nto different from the powers of the same court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence provided it pays due regard to the fact that the matter had been before the Court of Sessions and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the Sessions Judge must pay the due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter.'
(16) Keeping the above principles in mind, we have come to conclusion, as stated above, that the view taken by the lower court was unreasonable in so far as it has refused to believe the statement of Gita P.W. 4, and eye-witness, on the two grounds mentioned above. Once we have come to the conclusion that the guilt of Mewa Lal accused has been established beyond reasonable doubt, it is necessary to give a verdict of guilty against him.
(17) We are, however, nto convinced that the injuries caused to Gita P. W. 4 can be called grievous. The injuries appear to be superficial. The liquid splashed or her face produced some redness (erythema) on the skin over a part of her face involving her upper eye-lids. There has been no corrosion, of the skin or other deformity. The case sheet, Ex. P. W. I/D, reveals that after treatment it was found that the 'burn was superficial, result satisfactory, no deformity.' According to Dr. K. P. Sheka, P. W. I, whose statement before the committing Magistrate at the request of the prosepution was transferred to the Sessions record under section 509 Criminal Procedure Code, he had treated Gita for 4/5 days in the hospital.
(18) According to the appellant,, the case is covered by section 320 (eighthly) of the Indian Penal Code. The said section reads as folloWS :
'SECTION 320 (eightly)-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.'
(19) According to the above definition, the hurt would be grievous only if life is endangered or during the space of 20 days, it causes the sufferer to be in severe bodily pain or the sufferer to is unable to follow his ordinary pursuits. None of these things appear to have happened. It is nobody's case that the hurt endangered Gita's life. Gita no where says that she remained in 'sever' bodily pain throughout the space of 20 days. The doctor's evidence, on the other hand. is contrary to this. Gita P. W. 4 has, however, stated that she 'could do nothing' during that time. This is hardly believable. If she was nto in severe bodily pain during the space of 20 days, she could nto be said to have been rendered unable to follow her ordinary pursuits. Her mere stay in the hospital for 20 days, indicates nothing. We, thereforee, hold that the injury caused to Gita did nto amount to grievous hurt. It is also seen that there was no corrosion of the skin. The liquid that was splashed on the face of Gita cannot, thereforee, be said to be a corrosive substance It appears to be some mild substance or some acid in a diluted form. which was nto corrosive at all. The case, thereforee is noi covered by section 324 or 325 or 326 of the Indian Penal Code. The only section of the Indian Penal Code which is applicable to the present case is section 323.
(20) Under the circumstances, we set aside the Judgment of the trial Court and convict the accused Mewa Lal under section 323, Indian Penal Code and sentence him to a fine of Rs. 300.00. In case of default on payment of fine, the accused shall undergo simple imprisonment for a term of 15 days.