Kailash Yadav And Another vs State Of U.P. on 10 July, 2026

Allahabad High Court

Kailash Yadav And Another vs State Of U.P. on 10 July, 2026

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Judgment Reserved on 18.05.2026
 
Judgment Delivered on 10.07.2026		
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
CRIMINAL APPEAL No. - 1495 of 1983
 

 
Kailash Yadav and another
 
		..Appellant(s)
 
		
 
	Versus	
 
		
 
State of U.P.
 
		..Respondent(s)
 

 

 
Counsel for Appellant(s)	:	Govind Saran, P.P. Srivastava, R.P. Srivastava, S.l. Yadav
 
Counsel for Respondent(s)	:	A.G.A.
 

 

 
Court No. - 18 
 

 
HON'BLE ACHAL SACHDEV, J.
 

 
1.	The present appeal had been preferred by the appellants 1. Kailash Yadav, son of Govind and 2. Sukhram Teli, son of Ram Saran Teli, being aggrieved by the Judgment and order of conviction and sentence dated 04-06-1983 passed by the court of the Additional Sessions Judge, 4th in Sessions Trial Case No.33 of 1977 under Sections 459/ IPC, Police Station Tetri Bazaar, Basti, whereunder the appellant Kailash Yadav had been tried for the offence under Sections 459/ IPC was held guilty of the offence under Section 326 IPC and Section 459 IPC and was sentenced to undergo rigorous imprisonment of 4 years under each count, and the accused Sukhram Teli was convicted and sentenced under Section 326 IPC read with Section 34 IPC and Section 459 IPC and was sentenced to undergo four years rigorous imprisonment under each count, and both sentences were to run concurrently.
 
2. 	The appellant Kailash Yadav, son of Govind, died during the pendency of the appeal and proceedings against him in the present appeal stand abated vide order dated 19-09-2018 of this court.
 
3.	The sole appellant, Sukhram Teli, son of Shravan, is before this court.
 
 4.	Factual matrix of the case is as under:-
 
(i) The First Information Report was lodged against accused Kailash Yadav and Sukhram Teli at Police Station Tetri Bazaar, District Basti, on the oral information of the informant Ori Raidas, father of the injured, under Sections 326 and  of the Indian Penal Code. The case was registered as Crime No. 142 of 1975.
 
(ii) The allegation against the accused was that the injured Ramdayal was acquainted with one Prabhawati of his village, which was not to the liking of the accused. On the intervening night of 2/3-11-1975, at about midnight, while Ramdayal was lying on his cot in the outer room of his house in Village Siswagrant, Police Station Tetri Bazaar, and reading a book in the light of a lantern, both accused entered the room. On being instigated by co-accused Sukhram, accused Kailash threw acid upon the injured from an earthen pot, causing burn injuries on his face, eyes, neck, chest, stomach, and thigh.
 
(iii) On hearing his alarm, the father, sister, and relative Sukhlal, who were sleeping in the adjacent verandah, rushed to the spot. As the father carried a torchlight, they recognised the accused persons in its beam, though the accused fled immediately thereafter.
 
(iv) On 03-11-1975 at 04:00 hours, the injured was taken on a cot to the Government Hospital, Naugarh, where he was medically examined by Dr. O.B. Agarwal. Immediately thereafter, the father of the injured proceeded to Police Station Tetri Bazaar and lodged the First Information Report of the incident. The said report was formally registered at 04:45 hours on 03-11-1975, thereby setting the criminal law in motion.
 
5.	The investigation of the case was initially undertaken by Sub-Inspector Markandey Singh, and thereafter continued by Sub-Inspector Vansh Bahadur Singh.
 
6.	During the course of investigation, the statements of the injured and other witnesses were duly recorded by the Investigating Officer. A site plan of the place of occurrence was also prepared to facilitate appreciation of the scene of crime. Upon completion of investigation, a charge-sheet under Sections 326 and  IPC was submitted on 15-11-1975 by the Investigating Officer. The learned Magistrate took cognizance of the offence. Since the charge under Section 459 IPC was triable exclusively by the Court of Session, the matter was committed to the Court of Session vide order dated 20-03-1976.The case was thereafter registered as Sessions Case No. 33 of 1977 on 12-01-1977, thereby placing the matter within the jurisdiction of the Sessions Court for trial.
 
7.	After the accused had appeared before the court, a charge under Sections 459/ read with Section 34 IPC. was framed and was read over and explained to them. The accused denied the charges and claimed to be tried. The accused were on bail during the course of the trial,   and the sole appellant is on bail in the present appeal.
 
8.	The prosecution, in support of its case, has examined the following witnesses:- 
 
Serial of Witness	Name of Witness	Category	Document proved	Material Exhibit
 
PW-1	Ori Raidas	Fact(Father of injured and Informant in the case)	Tahrir exhibit ka-1	--
 
PW-2	Dr O B Agarwal	Medico Legal	Medical Examination Report dated 03-11-1975,Exhibit Ka'2	--
 
PW-3	Taramati	Fact(Sister of Injured)	 	 
 
PW-4	Ramdayal	Injured	 	
 
PW-5	Vansh Bahadur Singh, 	Investigating Officer	Charge Sheet Exhibit Ka3
 
GD No.4 dated 03-11-1975 and FiR exhibit Ka'4 (Secondary Evidence)	
 
PW-6	SI Markandeya Singh	Investigating Officer	RecoveryMemo Exhibit Ka5(Fard)
 
Site Plan Exhibit Ka6	 
 

 
9.	After evidence of the prosecution side had concluded, the statement of the accused under Section 313 Cr.P.C. was recorded wherein the accused denied the prosecution's story and submitted that they had been falsely implicated in the case.
 
10.	The accused did not give any evidence in their defence.  
 
11.	Heard learned counsel for the appellant and perused the record.
 
12.	The principal contention advanced on behalf of the appellant is that no overt act has been attributed to him by the injured in the incident. According to the prosecution case, the appellant is alleged only to have exhorted the co-accused, Kailash Yadav, to throw acid upon the injured. It is urged that there exist inherent contradictions in the statements of the prosecution witnesses which were not duly considered by the trial court, and that the conviction rests upon evidence of a weak and unreliable character.
 
13.	Learned counsel for the appellant further submits that the prosecution has failed to establish any motive on the part of the appellants to commit the crime. It is pointed out that the injured was asleep in a separate room, whereas the witnesses who claimed to have seen the accused persons fleeing were sleeping in the adjoining veranda. Their identification of the accused in torchlight is assailed as doubtful, particularly since the Investigating Officer neither recovered the torch allegedly used by the eyewitnesses nor seized any burnt material or burnt clothes of the injured from the place of occurrence.
 
14. 	It is, thus, contended that the conviction of the appellant rests solely upon the oral testimony of the injured and other witnesses of fact, unsupported by corroborative or material evidence, and therefore cannot be sustained. The appellant has already been incarcerated in jail for a period of about three months after conviction.
 
15.	Learned A.G.A. has strongly rebutted the arguments put forward by the counsel for appellants and has submitted that the testimony of the injured witness is in itself sufficient to convict the accused/appellants, and in the present case, the accused were identified by other witnesses who were present at the place of the incident and had seen the accused/appellants flee from the crime scene. The prosecution's case is corroborated in material particulars as to injuries being caused by acid burn, and the trial court has rightly convicted the accused/appellants.
 
16.	The informant of the case, PW-1 Ori Raidas, is the father of the injured. On the basis of his oral information, the First Information Report was lodged against the accused at Police Station Tetri Bazaar. The incident occurred around midnight on 2/3‑11‑1975, and the First Information Report was registered at 04:45 a.m. on 03‑11‑1975.
 
17.	The informant of the case, PW-1 Ori Raidas, is the father of the injured. On the basis of his oral information, the First Information Report was lodged against the accused at Police Station Tetri Bazaar. The incident occurred around midnight on 2/3-11-1975, and the First Information Report was registered at 04:45 a.m. on 03-11-1975.
 
18. 	As per the record, the injured was medically examined at 04:00 a.m. on the same date by the attending doctor. Since the informant was engaged in extending immediate medical attention to his injured son, the lodging of the report at 04:45 a.m. cannot be said to suffer from any unreasonable delay. Consequently, no benefit of the alleged delay accrues to the accused.
 
19.	PW-1 Ori Raidas, the father of the injured, has deposed before the Court that he and his daughter, Taramati, were sleeping in the verandah adjacent to the room where his son, Ramdayal, was reading a book in the light of a lantern. On hearing the scream of Ramdayal, they rushed towards his room and saw the accused fleeing from the spot, whom they identified in torchlight. He further stated that the injured informed him that the accused Kailash had thrown acid upon him at the exhortation of co-accused Sukhram. It is significant that no suggestion was put to this witness by the counsel for the accused/appellants disputing his claim of having seen the accused fleeing from the place of occurrence. The statement, therefore, remains unrebutted.
 
20.	Similarly, PW-3 Taramati, the sister of the injured, corroborated the testimony of PW-1 by stating that she too had seen the accused fleeing from the place of incident. No suggestion was put to her in cross-examination to challenge this assertion. Her statement also remains unrebutted.
 
21.	PW-4 Ramdayal, the injured himself, has categorically stated before the Court that he saw accused Kailash and Sukhram throw acid upon him, and identified them in the light of the lantern. On his scream, his father, sister, and relation Sukhlal arrived at the place of incident, whereupon the accused fled. He sustained injuries as a result of the acid attack. He further stated that the accused were jealous because a girl, Padmawati of his village, spoke to him. No suggestion was put to this witness by the defence disputing his identification of the accused or their presence at the scene. His testimony, therefore, also remains unrebutted.
 
22.	The injured Ram Dayal was medically examined on 03-11-1975 at PHC Naugarh, and the medical examination report is Exhibit Ka2. The same has been proved before the court by PW-2 Dr OB Agarwal in respect of which the witness, in his evidence before the court, has stated that he had medically examined the injured and the eyelashes were swollen and were singed, the cornea was cloudy and lips were swollen and singed. found acid burn injury on the face, neck, chest, shoulders, both arms, the front side of both legs, and on the back of the injured Ramdayal. He further observed that the injuries were grievous in nature, and were fresh and caused by some corrosive agent.
 
23.	In the case of Gentela Vijayavardhan Rao v. State of A.P. AIR 1996 SC 2791, the Supreme Court has re-affirmed the doctrine of res gestae as incorporated in Section 6 of the Evidence Act. In para 15 whereof the Honble Supreme Court has observed that:- 
 
 15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue as to form part of the same transaction becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman (1896) 2 QB 167, (1895-99) All ER Rep 586 a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. (1952) 2 All ER 447 thus:89
 
The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.
 
24.	Witnesses seeing an assailant flee immediately after the offence fall within this principle and statement of such a witness is relevant.
 
25.	Section 6 of the Evidence Act is an exception to the general rule where under the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus..Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued. 
 
26.	The prosecutions case rests upon the unrebutted testimony of the witnesses of fact, namely PW-1 and PW-2, who categorically deposed that they saw the accused/appellants fleeing from the place of occurrence immediately after the incident. Both witnesses further stated that, upon reaching the injured, they were apprised by him of the assault, and PW-1 promptly took the injured to the Government Hospital. This sequence of events leaves no room for doubt as to the trustworthiness of their testimony.
 
27.	The oral evidence of PW-1 and PW-2 stands corroborated in material particulars by the injury report of the injured witness, Ramdayal, as well as by his own deposition before the Court. The convergence of ocular testimony with medical evidence lends assurance to the prosecution version.
 
28.	In view of such consistent and corroborated evidence, the finding of the trial court regarding the involvement of the accused/appellants in the commission of the crime is well-founded and calls for no interference.
 
29.	The Supreme Court, in the case of Bhajan Singh Alias Harbhajan Singh And Others v. State Of Haryana . 2011 AIR SC 2552 SC ,in para 36 has observed:-
 
36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
 
30.	In so far as submissions made by learned counsel in regard to motive is concerned , in the case of Nathuni Yadav And Others v. State Of Bihar And Another, 1997 AIR SC 1808 SC, it has been observed by the Supreme Court  that 
 
 17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer thus: 
 
But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties. 
 
Though it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless the motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.
 
31.	In Atley v. The State Of Uttar Pradesh . AIR 1955 SC 807, 1955 Cri LJ 1653 it was held:-
 
That is true; and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty, but the absence of clear proof of motive does not necessarily lead to the contrary conclusion.
 
32.	The injured in his testimony before the trial court has stated that the accused were jealous of him talking to a village girl. The accused in their statement under Section 313 Cr.P.C has denied this assertion of prosecution.
 
33.	The prosecution's case is supported by medical evidence and unrebutted evidence of prosecution's witnesses of fact. Absence of any motive ,where there is corroborated eye witness account, becomes insignificant and the finding of trial court on point of motive needs no interference.
 
34.	The counsel for appellant has assailed the judgment of trial court on point of faulty investigation in failure of collect material evidence from the place of incident.
 
35.	The PW-2 Taramati has testified before the court that the earthen pot that had been used by the accused in the commission of the crime was found at the place of the incident, but the same was never produced before the trial court to lend credence to the prosecution's story. The witness has, in her cross-examination, herself admitted that the cot was seen by the police, but the bed sheet, pillow, and rug were not before the police when they came to the place of the incident, as the same had been taken to the police station. Moreover, the PW-6 Markandeya Singh, being the first Investigating Officer, proceeded to the place of incident and, in his statement before the trial court, has stated that he had recovered the clothes that were burnt from the place of incident and had prepared the recovery memorandum of 6 items, viz. Rug, Bedsheet, Pillow, earthen pot, a Jeep Torch and a Lantern that were given to him by Ori and have been proved as exhibit Ka5 by him, but in his cross-examination, the witness states that he did not mention the place where the exhibit Ka5 was prepared in the case diary. The Informant of the case has nowhere in his statement before the court stated that he had handed over certain articles to the police, as has been stated by PW-6 in his examination in chief. On the other hand, PW-3 Taramati, in her statement before the court, has stated that the articles that were burnt in the incident were taken to the Thana by his uncle Jhagru and not by his father and had also taken the injured to the Thana with them. She further states that when the police came to their village in the afternoon, they had seen the cot on which the injured had been lying at the time of the incident, but did not take anything along as the same had been taken to the police station earlier. The injured, on one hand, states that he was asleep when the incident took place, and on the other hand, he states that he was reading a book in the light of a lantern on his bedside and had seen the accused. Since, as per the medical report, the upper limb and the lower limb of the injured and his face had received acid burn injuries, the probability that the book that the injured was holding at the time of occurrence would also have been damaged is very high, but the same was never recovered and produced by the police before the trial court to corroborate their case against the accused. 
 
36.	The statement of PW-3 Taramati is in contradiction of statement of first investigating officer PW-6 as to the place of preparation of exhibit Ka5 and creates a doubt as to why fact of place where the recovery of burnt articles was prepared is being concealed by the first investigating officer but the trial court did not take into consideration a major contradiction between evidence of PW-1, PW-2 and PW-6, in so far as recovery of burnt material and non production of the same before the trial thereby creating serious doubt as to the prosecution story in so far as place where the memorandum of recovery of material evidence is concerned. But perusal of Exhibit Ka'5 (Memorandum of Recovery) shows that the rug, bed sheet etc. that were recovered had acid burn marks on them.
 
37.	The above analysis of the trial court judgment in light of the evidence on record indicates serious lapses on the part of the police investigating the crime while preparing the memorandum of recovery of material evidence from the place of incident. But the question arises as to the impact of faulty investigation where prosecution case is corroborated by eye witness account and medical evidence.
 
38.	When the prosecution's case is otherwise supported by medical evidence, but there are lapses on the part of the Investigating Officer in regard to recovery of articles from the crime scene and non-production of the same before the trial court, the evidence of witnesses produced by the prosecution needs to be sifted more carefully. Such lapses may weaken the prosecution's case, but they do not necessarily demolish it. Courts distinguish between minor irregularities and fatal defects. If the core of the prosecution's story is intact and supported by medical evidence, the lapses committed by police won't be of any advantage to the accused. A conviction can be sustained.
 
39.	The Supreme Court has repeatedly held that lapses or omissions by the Investigating Officer  such as failure to seize material objects, non‑production of seized articles, or defective recovery memos  should not by themselves result in acquittal if the substantive evidence (ocular + medical) is trustworthy. 
 
40.	The Supreme Court, in the case of C. Muniappan vs. State of Tamilnadu, 2010 AIR SC 371, in para 55 has observed as under:- 
 
55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether, due to such lapse, any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
 
41.	Since the prosecution's case is supported by eye witness account and an injury report of eye witness, the lapses, if any, committed by the Investigating officer wont benefit the accused. The trial court has not committed any error in convicting the accused.
 
42.	The learned counsel for the appellant has submitted that the conviction of accused under Section 326 IPC is disproportionate to the evidence on record and therefore, the judgment suffers from the non-application of the judicial mind by the trial judge to the evidence on record. The counsel has drawn attention of the court to relevant sections of evidence in this regard.
 
43.	The injured has stated that he lost his eyesight in the incident and has further stated that he was taken to District Hospital Basti, but no medical evidence as to permanent deprivation of sight has been produced before the trial court. The prosecution has examined Dr. O. B. Agarwal as PW-2, and the witness has proved the medico-legal report of the injured as exhibit Ka2. The witness, in his evidence before the court, has stated that he had medically examined the injured and found acid burn injury on the face, neck, chest, shoulders, both arms, the front side of both legs, and on the back of the injured Ramdayal. He further observed that the injuries were grievous in nature and were fresh and caused by some corrosive agent. The trial court, placing reliance on evidence of PW-2 and statements of the witnesses of fact, convicted the appellant, Sukhram, under Section 326 IPC, read with Section 34 IPC and Section 459 IPC.
 
44.	The counsel for appellant argues that to sustain a conviction under Section 326 IPC, the prosecution must prove that the injury falls within one of the enumerated categories of grievous hurt, and clear Medical evidence is crucial to establish the permanence of injury. clear Medical evidence is crucial to establish that the injury falls within one of the enumerated categories. Initial treatment records may prove hurt, but unless they demonstrate permanent deprivation of eyesight or other bodily function, or that the hurt was of a nature endangering life, or that the victim was in severe bodily pain or unable to follow ordinary pursuits for twenty days, the injury cannot be classified as grievous under Section 320 IPC. Where documents of initial medical treatment are proved, but no document establishes permanent deprivation of eyesight or other bodily function, that the hurt was of a nature endangering life, or that the victim was in severe bodily pain or unable to follow ordinary pursuits for twenty days, a conviction under Section 326 IPC is unsustainable.
 
45.	Perused the record.
 
46.	The trial court has failed to take into consideration the fact that the prosecution did not produce a medical record relating to treatment given to injured Ramdayal at the District Hospital Basti, and in the absence of any medical record from which an inference could be drawn that the injured Ramdayal had been deprived permanently of his eyesight or any other body function, erred in convicting the appellant under Section 326 IPC read with Section 34 IPC.
 
47.	As per the prosecution's case, the appellant has not been assigned any overt act by the injured in the incident. The rest of the witnesses saw the accused /appellants fleeing from the place of the incident. The injured Ram Dayal has been examined as PW-4 and in his statement before the trial court, has assigned the act of throwing acid on him to the accused Kailash Yadav, and the accused/appellant has been assigned the role of exhorting co-accused Kailash Yadav to throw acid on the injured. The witness, in his statement before the court, has stated that he had fallen asleep when the accused entered his room and when he woke up, he saw the accused Kailash, who had an earthen pot filled with acid, and he threw acid on exhortation by the co-accused/appellant Sukhram. And on his scream, his father and sister rushed there, and witness Sukhlal also came to the place of the incident.
 
48.	Common Intention under Section 34 IPC requires prior concert or active participation. The Supreme Court insists on examining the totality of circumstances to ascertain common intention. Words of exhortation, unless coupled with overt acts (planning, supplying acid, accompanying the assailant), do not suffice. Where prosecution evidence is weak (no independent witnesses, contradictions, lack of corroboration), exhortation alone cannot sustain a conviction. Conviction requires proof of: Supplying acid, Planning or prior concert, Physical participation. The prosecution's case against the appellant rests solely on the testimony of the injured witness, who attributed to the appellant only the role of exhortation. No overt act has been assigned to the appellant. The other witnesses of fact merely saw the accused persons fleeing from the place of occurrence and did not witness the actual assault..The prosecution has further failed to produce medical evidence establishing permanent deprivation of eyesight or other bodily function of the injured. The medico-legal report proved by PW-2, only shows acid burn injuries but does not certify permanent disability. In the absence of such proof, a conviction under Section 326 IPC cannot be sustained. Courts may instead convict under Section 324 IPC, as the assault by dangerous means is proved, but grievous hurt is not. This ensures that convictions for grievous hurt rest on objective medical evidence, not mere assertions.
 
49.	The Supreme Court, in the case Surendra Chauhan v. State of M.P. 2000 AIR SC 1436 in para 11 thereof, has outlined the principle governing vicarious liability under Section 34 IPC as given below:-
 
11. Under Section 34, a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who, in one way or another, facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is the simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such a consensus can be developed at the spot and thereby intended by all of them. (Ramaswami Ayyangar v. State of T.N (1976) 3 SCC 779) The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention, even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State Of Maharashtra. (1999) 8 SCC 428.) To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability, but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.
 
50.	The counsel for the appellant argues that the trial court overlooked material contradictions in witness testimony, non-production of crucial exhibits, and the inherently weak role assigned to the appellant. Proceeding to convict the appellant on such fragile evidence under Section 326/ IPC was erroneous.
 
51.	The prosecution's case, as reflected in the evidence, shows that the injured (PW-4) sustained acid burn injuries and that both accused were present in the injureds room at the relevant time. Their presence at such an odd hour, in the middle of the night, without permission or knowledge of the injured witness Ram Dayal and the statement of Ramdayal concerning the act of appellant Kailash of throwing acid on him, clearly indicates and furnishes proof of participation in a common intention shared between the appellants. The medico-legal report proved by PW-2 corroborates that the injuries were caused by a corrosive agent. These facts suffice to establish that hurt was caused by dangerous means. The trial court has made error in judgment in convicting the appellants under Section 459 IPC.
 
52.	However, the prosecution has failed to produce any medical document from which it can be inferred that the injured suffered permanent privation of sight or permanent loss of any other bodily function. The medico-legal evidence on record records burn injuries but does not certify the permanence of disability. In the absence of objective medical proof of permanent deprivation of sight or other bodily function, the ingredients of grievous hurt as defined in Section 320 IPC are not made out and a conviction under Section 326 IPC and Section 459 IPC cannot be sustained.
 
53.	As regards the appellants role, the only overt act attributed to the appellant in the evidence is that of exhortation. It is well-settled that mere exhortation or verbal instigation, unless supported by corroborative circumstances showing prior concert, supply of the weapon/means, planning, or active participation, is a weak species of evidence for the purpose of attracting liability under Section 34 IPC. The totality of circumstances must be examined to infer common intention.
 
54.	The testimony of PW-4 (injured witness) regarding the presence of accused Kailash Yadav and appellant Sukhram at the place of occurrence has not been wholly disbelieved. The medical evidence corroborates that acid burns were inflicted. Further, the informant (father of the injured) and the sister of the injured have consistently deposed to the presence of the accused at the relevant time and place. Their evidence remains unrebutted. No independent evidence has been adduced to show that the appellant supplied the acid, planned the attack, or physically participated in throwing the corrosive substance. The prosecution witnesses have not assigned any overt act to the appellant beyond his presence and subsequent flight from the scene. The act of fleeing from the place of occurrence, coupled with the established presence of the appellant at the relevant time and place, is indicative of a shared common intention with co-accused Kailash Yadav. The accused persons have not offered any explanation for their presence in the house of the injured at midnight, a fact peculiarly within their knowledge. Their silence raises a presumption adverse to them under Section 106 of the Evidence Act. While the prosecution has failed to prove active participation of the appellant in the act of throwing acid, the cumulative circumstancespresence at the scene, unrebutted testimony of witnesses, and unexplained conductjustify the inference of common intention under Section 34 IPC. The complicity of the appellant in the offence is thus established.
 
55.	The prosecution has successfully established its case, and the burden was on the accused to dispel the prosecution's case with their evidence. If the accused does not explain facts within his special knowledge (e.g., presence at the crime scene, cause of injuries to a person in his custody), the court may draw an adverse inference.
 
56.	The trial court convicted the appellant under Sections 326/ IPC and 459 IPC. On careful appraisal of the evidence, it is evident that while hurt was caused by dangerous means, namely acid, the prosecution has failed to establish permanent deprivation of sight or bodily function so as to attract Section 326 IPC. Section 326 IPC penalizes voluntarily causing grievous hurt by dangerous weapons or means, and grievous hurt is defined under Section 320 IPC to include permanent privation of sight, hearing, or impairment of a member or joint. In the absence of medical evidence proving such permanent disability, conviction under Section 324 IPC, which penalizes voluntarily causing hurt by dangerous weapons or means. This crucial aspect escaped consideration by the trial court.
 
57.	Likewise, the conviction under Section 459 IPC is unsustainable. Section 459 IPC requires proof of grievous hurt caused in the course of lurking house-trespass by night. The evidence on record establishes preparation for causing hurt, but does not satisfy the ingredient of grievous hurt. In such circumstances, the offence falls within Section 458 IPC, which deals with lurking house-trespass by night with preparation for hurt, assault, or wrongful restraint.
 
58.	The Supreme Court in State of M.P. v. Kanha @Om Prakash (2019) 3 SCC 605, reiterated that conviction must strictly conform to the statutory ingredients of the offence proved, and where grievous hurt is not established, conviction under Section 326 IPC cannot be maintained. Similarly, in Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577, it was emphasized that the appellate court must correct misapplication of penal provisions where the evidence does not satisfy statutory requirements.
 
59.	Section 324 of the Indian Penal Code (IPC) addresses voluntarily causing hurt by dangerous weapons or means. It states that whoever causes hurt using dangerous instruments, such as firearms, knives, or any other means likely to cause death, can be punished with imprisonment for up to three years, a fine, or both. Similarly, section 458 IPC Section 458 of the Indian Penal Code (IPC) addresses the crime of lurking house-trespass or house-breaking by night. It states that: Whoever commits lurking house-trespass by night, or house-breaking by night, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. This section is crucial for safeguarding property rights and ensuring that unlawful intrusions are penalized appropriately.
 
60.	Further, Section 222 of the Code of Criminal Procedure, 1973 provides the statutory basis for such alteration. Sub-section (1) permits conviction for a minor offence though the accused was not charged with it, where the offence charged consists of several particulars. Sub-section (2) clarifies that when facts proved reduce the offence to a minor one, conviction may be recorded for the minor offence, although it was not charged. The principle applies only where the two offences are cognate, sharing common ingredients, with one punishable with a lesser sentence. Section 324 IPC is cognate to Section 326 IPC, and Section 458 IPC is cognate to Section 459 IPC, thereby permitting alteration of conviction under Section 222 CrPC.
 
61.	Upon careful scrutiny of the evidence on record, this Court finds that the allegation of grievous hurt, as contemplated under Section 320 IPC, has not been substantiated beyond reasonable doubt. The substratum of the charge under Section 459 IPC, therefore, fails. Nonetheless, the material unmistakably establishes that the accused committed lurking house-trespass by night with preparation for causing hurt and wrongful restraint. In terms of Section 222 CrPC, interference is warranted to this limited extent only, by altering the conviction from Section 326 IPC to Section 324 IPC, and from Section 459 IPC to Section 458 IPC, while maintaining the finding of guilt otherwise.
 
 62.	The appellant, in furtherance of common intention, entered the room of the injured at midnight, having made preparation to commit assault, and wherein corrosive substance was used and hurt was caused to the injured. This conduct is grave, involving premeditation and dangerous means. The seriousness of the offence cannot be minimized merely because the incident occurred decades ago.
 
63.	The learned counsel for the appellant submits that the present appeal has remained pending for nearly five decades. The appellant is now an aged person, the incident having occurred in the year 1975. It is further urged that the appellant has no criminal antecedents which would dis-entitle him from consideration under the Probation of Offenders Act, 1958. In these circumstances, the appellant prays that the benefit of probation be extended to him. 
 
64.	It is pertinent to note that the incident in question occurred nearly five decades ago. The long lapse of time has substantially diluted the deterrent purpose of punishment, and the accused has since lived in society without any further criminal involvement. The doctrine of probation, as embodied in the Probation of Offenders Act, 1958, is premised upon reformation rather than retribution, and seeks to prevent offenders from being hardened by incarceration. In the present case, while the conviction must be sustained to uphold the rule of law, the ends of justice would be adequately served by extending the benefit of probation. Sending the accused to prison at this distant point in time would serve no useful purpose, whereas probation ensures accountability tempered with humanity.
 
65.	A three-Judge Bench of Supreme Court Court in Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254, observed as follows:-
 
99.  The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
 
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong. 
 
66.	Section 4, Probation of Offenders Act allows release on probation for offences not punishable with death or life imprisonment. Since Section 458 IPC is punishable with imprisonment up to 14 years but not mandatory life or death, probation is not barred per se.
 
67.	The prosecution has been successful in proving the offence of causing hurt to the injured after the accused had entered the room of the injured accompanying co-accused, after having made preparation to causing hurt to the injured in furtherance of common intention to commit assault upon the injured by use of a corrosive substance and as they had entered the room at around midnight after having made preparation to commit the offence. their case is squarely covered under s.458 IPC.
 
68.	Keeping in view the fact that the appellant has been found guilty by the trial court as well as by this Court of the use of a corrosive substance in commission of assault on injured while the injured was lying down on his cot in an unguarded, hapless state is a serious matter and extending the benefit of probation would weaken the resolve of society to report such matters to the police. Although the incident is about five decades old, keeping in view the seriousness of crime committed by the appellant and view of the consistent pronouncements of the Supreme Court (Dalbir Singh v. State of Haryana, (2000) 5 SCC 82; State of M.P. v. Bablu, (2014) 9 SCC 281), probation is ordinarily denied in cases involving serious violence or corrosive substances, as extending such benefit would weaken societal resolve to report and resist such crimes. The use of acid in assault is a grave matter, and the deterrent principle must prevail. the benefit of The Probation of Offenders Act ,1958 cannot be extended to the appellant.
 
69.	Accordingly, this Court holds that the appellant is not entitled to probation under Section 4 of the Probation of Offenders Act, 1958.
 
70.	The present appeal arises out of the judgment and order of conviction passed by the learned trial court on 04-06-1983. The appellant has been on bail throughout the pendency of the appeal. It is urged that the delay in disposal of the appeal, coupled with the appellants continued liberty on bail and absence of criminal antecedents should operate to mitigate his culpability.
 
71.	The Court is unable to accept the submission that delay in hearing of the appeal effaces or dilutes the conviction. Culpability flows from the finding of guilt recorded by the trial court. While deterrence must prevail, the Court cannot ignore the mitigating circumstances: the incident occurred in 1975; the appellant has faced trial for over five decades; he remained on bail throughout; and there is no material to show prior criminality. It is well-settled that prolonged pendency of appeal may be considered as a mitigating circumstance while moulding the sentence.
 
72.	The Supreme Court, in Surjit Singh v. Nahara Ram (2004) 6 SCC 513, in para 5 has observed that:-
 
The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of order should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, State of criminal law continues to be- as it should be- a decisive reflection of social consciousness of society. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
 

 
73.	At this juncture, it becomes imperative to harmonize the collective interest of society with the rights of the appellant as an individual, who himself is a constituent of the very society whose interests are sought to be protected. The right to a fair and speedy trial is an inseparable facet of the right to life guaranteed under Article 21 of the Constitution of India. Article 21 mandates that deprivation of life or personal liberty must conform to a fair, just, and reasonable procedure established by law.
 
74.	Where delay in disposal of the appeal has occurred solely due to the Court being overburdened, without any interference or dilatory conduct attributable to the appellant, the appellant cannot be made to suffer for such delay. In criminal appeals pending for decades, this Court has consistently tempered punishment, holding that sending an aged appellant back to jail after such extraordinary lapse serves no penological purpose. While affirming the conviction, the ends of justice are met by reducing the sentence to the period already undergone or by suitably modifying it, thereby balancing the subsistence of guilt with the constitutional guarantee of speedy justice under Article 21.
 
75.	Section 324 IPC: Provides for imprisonment up to three years, or fine, or both. There is no minimum prescribed sentence, leaving discretion with the Court to impose only fine if circumstances so warrant.
 
76.	Section 458 IPC: Prescribes imprisonment which may extend to fourteen years, and also fine. Here too, no minimum sentence is mandated, vesting discretion in the Court to calibrate punishment in accordance with the peculiar facts of the case.
 
77.	In the present appeal, the accused/appellant Sukhram Teli was convicted and sentenced under Section 326 IPC read with Section 34 IPC and Section 459 IPC and was sentenced to undergo four years rigorous imprisonment under each count, and both sentences were to run concurrently. The trial had been pending before the trial court since the year 1975 and judgment was pronounced in the year 1983. The appeal has been pending before this Court for a period of over five decades. The appellant has remained on bail for a considerable period without any misuse of liberty, and there are no criminal antecedents on record, nor has any such record been brought to the notice of this Court by the learned AGA. Section 386(b)(iii) Cr.P.C/427(b)(iii) BNSS confers power on appellate court to that it may with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.
 
78.	This Court is mindful of the caution sounded in State of M.P. v. Bablu (2014) 9 SCC 281 and Tarak Nath Keshari v. State of Bihar (2023) SCC OnLine SC 145 that undue sympathy resulting in inadequate sentence undermines public confidence in the justice system. However, the present case is not one of mere sympathythe delay of over five decades, occasioned through no fault of the appellant, raises a constitutional imperative under Article 21. The Supreme Court, in Amit Singla v. Union Territory of Chandigarh (Criminal Appeal No. 228 of 2026, decided on 13-01-2026), has observed that prolonged delay, coupled with absence of repeat offence, particularly in cases involving short custodial sentences and non-heinous crimes, constitutes a valid ground for exercising discretion in favour of reduction of sentence.
 
79.	In the backdrop of these principles, while affirming the conviction under Sections 324 and  of the Indian Penal Code, the sentence of imprisonment is modified to the period already undergone. In addition, the appellant shall pay a fine of Rs.15,000/- under Section 324 IPC and Rs.25,000/- under Section 458 IPC. In default of payment of fine under Section 324 IPC, he shall undergo simple imprisonment for fifteen days, and in default of payment of fine under Section 458 IPC, he shall undergo simple imprisonment for three months.
 
80.	The fine, upon realization, shall be remitted to the District Legal Services Authority for utilization towards victim compensation and legal aid, thereby ensuring that the punitive element of sentencing is harmonized with restorative justice. Such modification would adequately serve the ends of justice by balancing deterrence with constitutional fairness, recognizing both the societal interest in punishment and the individuals right to a fair and proportionate sentence.
 
81.	It is clarified that the exercise of this power is confined to alteration of the nature of sentence and does not, in any manner, enhance the punishment imposed by the trial court. The modification is thus a judicial response to extraordinary delay, consistent with constitutional guarantees and the evolving philosophy of sentencing.
 

 
					ORDER

1. The conviction of the appellant under Section 326 IPC read with Section 34 IPC and Section 459 IPC, as recorded by the trial court, is hereby altered to under Section 324 IPC read with 34 IPC and Section 458 IPC.

2. The appellant is convicted under Section 324 IPC and sentenced to the period already undergone, together with a fine of Rs.15,000/- (Rupees fifteen thousand). In default of payment of fine, he shall undergo simple imprisonment for fifteen days month.

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3. The appellant is further convicted under Section 458 IPC and sentenced to the period already undergone, together with a fine of Rs.25,000/- (Rupees Twenty Five Thousands). In default of payment of fine, he shall undergo simple imprisonment for three month.

4. The appeal is partly allowed to the extent indicated above. The conviction under Sections 326/34 IPC and 459 IPC is modified to convictions under Sections 324/34 IPC and 458 IPC, with sentence of period already undergone and fine as specified herein.

5. The bail bonds furnished by the appellant stand cancelled and the sureties are discharged of their liabilities.

6. A copy of this judgment be transmitted to the trial court forthwith for ensuring compliance, and a compliance report be submitted to this Court without delay. The record of the trial court be remitted back accordingly.

(Achal Sachdev,J.)

July 10, 2026

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