The main legal point established in the judgment is the reliance on the reliability of the victim's testimony, corroboration from contemporaneous documents and medical evidence, recovery of evidence, and the establishment of motive in proving the prosecution's case beyond reasonable doubt.

JUDGMENT :

JOYMALYA BAGCHI, J.

1. On consent of the parties, appeal is taken up for hearing.

2. Appellant has assailed judgment and order dated 19.03.2021 and 20.03.2021 passed by the learned Additional Sessions Judge, Fast Track Court, Suri Birbhum in Sessions Trial No. 01/December/2014 arising out of Sessions Case No. 99 of 2014 convicting him for commission of offence punishable under Sections 326A of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 30,000/- in default, to suffer imprisonment for six months for the offence punishable under Section 326A of the Indian Penal Code. Fine amount, if deposited, shall be paid to the victim PW-1.

Prosecution case:

3. Prosecution case as alleged against the appellant is to the effect that on 16.12.2013 at 8.30 am the victim (PW-1) was proceeding to her place of work riding on the back seat of the bicycle of Hiran Mahara (PW-3). When she arrived near New Dangalpara, appellant came from behind and threw acid on her and fled away. She cried out in pain and fell from the bicycle. Hiren Mahara informed her husband, Sisir Kora (PW-2). Sisir came to the spot. Victim was taken to police station where she lodged complaint against the appellant resulting in registration of Suri P.S Case No. 399 of 2013 dated 16.12.2013 under sections 326A/354D/307 IPC. Thereafter, she was shifted to Suri hospital and referred to Burdwan Medical College and Hospital on 29.12.2013.

4. During investigation, appellant was arrested. On the showing of the appellant, a glass bottle with the word “Mc. Dowells” written on it was recovered from the place of occurrence. During police custody, appellant made disclosure statement leading to recovery of a red and white plastic battery with the word “ASTRAL” endorsed thereon from his house. The seized bottle was sent for FSL examination and the report was collected.

Proceeding before the trial Court:

5. Charge sheet was filed against the appellant under sections 326A/307/34 IPC. During trial charges were read out and explained to the appellant. Appellant pleaded not guilty and claimed to be tried.

6. In the course of trial prosecution examined 11 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. During argument the appellant stated charge had been framed under section 326 IPC and not under section 326A IPC. Hence, he could not be convicted of the graver charge.

7. Trial Judge rejected this contention on the ground that the substance of the charge framed clearly disclosed the ingredients of section 326A IPC and reference to section 326 IPC instead of section 326A IPC was an inadvertent error which had not prejudiced the appellant. Relying on the evidence on record the judge concluded the said ingredients had been proved beyond doubt and convicted the appellant as aforesaid.

Arguments at the Bar:

8. During hearing of the appeal learned Counsel for the appellant reiterates though the charge was framed under section 326 IPC, his client had been convicted for a graver offence namely 326A IPC without reframing the charge. This is impermissible in law.

9. Without prejudice to the aforesaid submission, he further contends none of the witnesses corroborated the victim’s version that the appellant was the assailant. PW-3 on whose bicycle the victim was riding, admitted during cross-examination that he had not seen the assailant. PW-9, medical officer noted that the injuries were superficial and the victim suffered 9% burns only. Recovery of the glass bottle from the place of occurrence is not supported by independent witness. There was no FSL examination of the red and white battery said to be seized from the residence of the appellant. Prosecution case has not been proved beyond doubt.

10. Per contra, learned counsel for the State submits PW-1 is the injured victim. She has graphically described the acid attack upon her. Her deposition is corroborated by others, namely, PW