LexSRI BHAGWAN versus STATE OF U.P.
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A B [2012] 12 S.C.R. 774 SRI BHAGWAN v. STATE OF U.P. (Criminal Appeal No. 1709 of 2009) DECEMBER 6, 2012 [SWATANTER KUMAR AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] Penal Code, 1860- ss.302 and 326- Acid sprinkled on C victim causing him extensive bum injuries - FIR registered u/s.326 /PC - Statement of victim uls.161 CrPC - Death of the victim one day thereafter - Case altered to that u/s.302 /PC - Conviction of accused-appellant u/s. 302 by Courts below - Justification - Held: Justified - Testimony of PWs-1 D and 3 was convincing and natural - Moreover, they were total strangers and their presence was justified in eveiy respect - Statement of victim u/s.161 CrPC was truthful which subsequent to his death assumed the character of dying declaration falling within the four corners of s.32(1) of E Evidence Act '."" Recoveiy memo disclosed recoveiy of rubber gloves whic~i were apparently used by the appellant while carrying out !the offence of pouring acid on the victim - Since appellant took eveiy precaution to ensure that while throwing acid on victim, he was not injured in any manner, thus, F absence of any such injuiy on the appellant did not affect the prosecution case which was otherwise established by abundant legal evidence - Code of Criminal Procedure, 1973 - ss. 161and162 - Evidence Act, 1872 - s.32. The prosecution case was that PWs 1 and 3 saw the G accused-appellant sprinkling acid on the body of 'Y' who suffered extensive burn injuries. FIR was registered against the appellant under Section 326 IPC. PW-4 recorded the statement of 'Y' under Section 161 CrPC. 'Y' H 774 SRI BHAGWAN v. STATE OF U.P. 775 died one day after the incident. Thereafter the case was A altered to that under Section 302 IPC. The trial Court convicted the appellant under Section 302, IPC and sentenced him to life imprisonment. The conviction was affirmed by the High Court, and therefore the instant appeal. B The substantial contention made on behalf of the appellant was that PW1 and 3 could not have witnessed the incident and that having regard to the nature of the injuries sustained by the deceased 'Y', he could not have C made a statement under Section 161 Cr.P.C. It was further contended on behalf of the appellant that even if the statement can be said to have been made by the deceased, the same cannot be treated as a dying declaration for non-fulfillment of the statutory requirements and that absence of the acid marks on the D accused belied the case of the prosecution. One other submission made on behalf of the appellant was that PWs -1 and 3 were stock witnesses and, therefore, their version could not have been relied upon. E Dismissing the appeal, the Court HELD: 1. It can be stated that as per the version of PWs-1 and 3 while they were guarding the area as responsible residents of a nearby colony they heard the F cries of the deceased 'Y' and they rushed to the place of occurrence to help the deceased when they were able to witness the act of the appellant in sprinkling acid on the deceased and the attempt of the appellant to flee from the scene of occurrence which was successfully thwarted by the witnesses alongwith others standing nearby. Their G statement in narrating the incident in such a sequence was really convincing and that it was quite natural and acceptable in every respect without giving room for any doubt. Moreover, as rightly pointed out by the respondent, they were not interested in any manner in the H 776 SUPREME COURT REPORTS [2012] 12 S.C.R. A deceased. Nothing was put in cross examination to state that these witnesses had either tendered evidence at the instance of the police in any other criminal case or even a suggestion that they were stock witnesses of the police. There is nothing on record to show that these B witnesses had earlier deposed in any other criminal case in order to even remotely suggest that they were being used as stock witnesses by the police authorities. They were total strangers and their presence as claimed by them was justified in every respect and, therefore, there C was no room to doubt their version in having stated that it was the appellant who was responsible for causing acid injury on the deceased. [Paras 8, 10) [784-A-B, F-H; 785-A-B] Babudas v. State of M.P. 2003 (9) SCC 86 and Baldev D . Singh v. State of Punjab 2009 (6) SCC 564: 2009 (7) SCR 855 - held inapplicable. E Jai Prak
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