A.K. Shrivastava, J.

1. Feeling aggrieved by the judgment of conviction and order of sentence dated 2-9-2003 passed by the learned Third Additional Sessions Judge, Morena, in Sessions Trial No. 35/2002 convicting Appellant under Section 307 of IPC and thereby sentencing him to suffer ten years Rigorous Imprisonment and fine of Rs. 10,000/- (Rupees ten thousand), in default, further Rigorous Imprisonment of three years, the Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.

2. In brief, the case of prosecution is that on 9-8-2001 at 12.30 a.m. complainant-Hakim was sitting in front of his house along with his younger brother Kalyan Singh and wife Laxmi Bai (hereinafter referred to as "the injured") and they were talking to each other, at that juncture, Appellant came and threw acid from a bottle on the injured, as a result of which at several places she received burn injuries; lost the vision of her right eye and her face was also disfigured. On being screamed by the injured, Kalyan and Feran came at the house of the complainant and they saw Appellant running away from the house of the complainant. The motive behind the incident as per the case of prosecution is that the bank pass book of the injured was kept in the house of Appellant, which he was not returning, as a result of which some dispute arose between him and the injured, eventually in order to take the revenge acid was thrown on the face of the injured by the Appellant. A report was lodged by the husband of the injured namely Hakim (P.W. 1) and after registering the case the investigation was initiated.

3. After the investigation was over a charge-sheet was submitted in the Committal Court which on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for the trial.

4. The learned Trial Judge on the basis of the material available in the charge-sheet framed charge punishable under Section 307 of IPC against the Appellant, which he denied and requested for the trial.

5. In order to prove charge, the prosecution examined as many as 12 witnesses and placed Exhs. P-1 to P-8 the documents on record. The defence of Appellant is that even after marriage for a long period 15 to 16 years the injured did not conceive from the complainant, as a result of which illicit relations were developed between Appellant and the injured which was not likely by the complainant, as a result of which on the fateful day he poured acid on his own wife (injured). A photograph (Exh. D-5) of Appellant and injured has also been filed. A support of his defence Appellant examined the witnesses namely Kallu (D.W. 1), Soberan (D.W. 2) and Mehboob Khan (D.W. 3), who have stated that on the fateful day the injured was screaming and was saying that her husband has thrown acid over her. This defence was also put to the husband of the victim namely Hakim (P.W. 1) as well as to the injured Laxmi Bai (P.W. 2).

6. The learned Trial Court after appreciating and marshalling the evidence came to hold that the charge under Section 307 of IPC has been proved and further held that the defence of Appellant is not proved and eventually convicted the Appellant and passed the sentences as mentioned hereinabove.

7. In this manner, the present appeal has been filed by the Appellant assailing the judgment of conviction and order of sentence.

8. The contention of Shri Atul Gupta, learned Counsel for Appellant is that right from very beginning the defence of Appellant is that injured was having illicit relation with Appellant because she did not conceive with her own husband Hakim (P.W. 1), who is complainant in the case. Learned Counsel further submits that the illicit relationships which were developed between Appellant and injured were not liked by the husband of the injured, hence, in order to take revenge he threw acid on his own wife. By inviting my attention to the photograph (Exh. D-5), it has been contended by learned Counsel that unless there is illicit relationship a Hindu lady will not go along with a Mohammedan grown up male in a photo-studio for clicking a photo and that too in a posture where the Appellant is hugging her in such a manner that his one hand is laying on the portion of her breast over the sari and fingers are bent in such manner so that one can visualize that Appellant is holding her breast over the sari. Learned Counsel by inviting my attention to the statement of injured (P.W. 2) Para 9 has submitted that she has admitted that complainant was having certain doubt about her relationship with the Appellant who used to come at her house frequently and which was not liked by him, however, she has admitted that despite 17 years of marital life had gone, she did not conceive. Learned Counsel further submits that the degree of proof of defence should not be compared with that of prosecution, where the prosecution is obliged to prove its case beyond all reasonable doubts. According to the learned Counsel the defence should be probable and if the defence is found to be probable the accused is entitled for benefit of doubt. In support of his contention learned Counsel has placed heavy reliance on the decisions of the Apex Court Punjabrao v. State of Maharashtra : AIR 2002 SC 486 , M.S. Narayana Menon alias Mani v. State of Kerala and Anr. : (2006) 6 SCC 39 , Sawal Das v. State of Bihar : AIR 1974 SC 778 and Man Singh v. Delhi Administration : AIR 1979 SC 1455 .

9. By inviting my attention to the evidence of defence witnesses namely Kallu (D. W. 1), Sobren (D.W. 2) and Mehboob Khan (D. W. 3) who are the residents of the same locality village it has been contended that the factum of throwing the acid by complainant over his own wife is proved. Learned Counsel by inviting my attention to the evidence of Investigating Officer Kedar Prasad (P.W. 12), Paras 8 and 9 has submitted that he did not try to interrogate with the village persons who where the residents of the locality where the incident had taken place and did not try to collect their evidence. The contention of leaned Counsel is that the evidentiary value of defence witnesses is akin to that of prosecution witnesses and the said evidence should not be thrown out just like a waste paper in a dustbin merely because the witnesses have been examined from the defence side. In support of his contention leaned Counsel has placed reliance on two decisions of the Supreme Court Munshi Prasad and Ors. v. State of Bihar : AIR 2001 SC 3031 and State of Haryana v. Ram Singh : AIR 2002 SC 620 .

10. Learned Counsel has also invited my attention to Para 8 of the cross-examination of the Investigating Officer Kedar Prasad (P.W. 12) and has submitted that as per the case of prosecution when the acid was thrown on the injured she was sitting on a cot, but no evidence has been collected by seizing the bedding and cot etc. in order to prove that they were burnt by acid because if acid is thrown on a lady, who is lying or sitting on a cot, certainly some drops of acid will fall on the bedding as well as on the cot, and hence, it has been argued by learned Counsel that the defence which has been put forth by Appellant is probable. On these premised submissions, it has been submitted by the learned Counsel that the learned Trial Court erred in convicting the Appellant, and hence, this appeal be allowed and the Appellant be acquitted from all the charges.

11. On the other hand, Shri J.M. Sahani, learned Public Prosecutor argued in support of the impugned judgment.

12. Having heard learned Counsel for the parties, I am of the considered view that this appeal deserves to be allowed.

13. On bare perusal of the statement of the injured-Laxmi Bai (P.W. 2) and her husband complainant Hakim (P.W. 1), it is gathered that Appellant came inside to their house and threw acid on the injured because there was some dispute in respect of returning of bank pass book. In the cross-examination injured-Laxmi Bai (P.W. 2) has admitted that her husband was having certain doubt over her character and was under impression that she is having illicit relations with Appellant. She has further admitted in Para 10 that despite her marriage took place 17 years ago, but, she did not conceive. In Para 4 of the cross-examination she has further admitted that the cot and the mattress on which she was sitting were also burnt. At this juncture, only I would like to scan the evidence of Investigating Officer Kedar Prasad (P.W. 12) who has admitted in Para 8 of his cross-examination that although the complainant-Hakim showed the burnt mattress, pillow and cot to him, but he did not seize any of these articles. Further the Investigating Officer has admitted that no marks and evidence of throwing acid were found by him at the spot. In Para 9 of his statement he has admitted that the floor of the house of complainant was Kochcha, but he did not find any mark of acid on the floor. Hence, the defence appears to be probable that Appellant has been falsely implicated by the complainant who is husband of the injured because the (complainant) was having certain doubt about the character of his wife (injured) and it appears that in order to take revenge he threw acid on his wife.

14. One important fact which cannot be marginalized and blinked away is that in order to support the probable defence which has been set forth by the Appellant that he was having illicit relationship with the injured the photograph (Exh. D-5) has been filed. On going through the said photograph, this Court finds that in a photo-studio, this photograph was clicked. In the photograph it is seen that Appellant has hugged the injured in such a manner that his left hand after going around the neck of the injured has been folded inside at the place of the left breast of the injured and the fingers of the palm are in such a position that one can see that he is holding the left breast of the injured though over her sari.

15. The Supreme Court in Punjabrao (supra), has laid down the law that the degree of proof of defence should not be equated with that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts and the Courts are required to see whether the defence which has been put forth is probable or not and if the defence is found to be probable certainly the accused is entitled for the benefit of doubt.

16. At this juncture, we would like to scan the evidence of defence witnesses namely Kallu (D.W. 1), Sobren (D.W. 2) and Mehboob Khan (D.W. 3), who are residents of the same locality and who have categorically stated in their statements that injured was shouting by saying that her husband has thrown acid over her and they have also stated that there was some illicit relationship between Appellant and the injured which was not liked by her husband and by them also. At this juncture, I would, also like to scan the evidence of Investigating Officer Kedar Prasad (P.W. 12) Para 9 again where he had admitted that at the spot Sobren (D.W. 2) and Mehboob Khan (D.W. 3) and some more persons assembled and they also informed about the incident, but the Investigating Officer has denied the suggestion that they were saying that on account of illicit relationship between Appellant and the injured, the complainant was keeping enmity and, indeed, he had thrown acid over his own wife by implicating the Appellant falsely. According to me, the Investigating Officer should have recorded the statement of independent witness. One important fact is proved from the evidence of Investigating Officer that witnesses who were examined by the defence were throwing sufficient light on the incident that how it had occurred and, therefore, it was incumbent upon him to have recorded their statements under Section 161 of Code of Criminal Procedure.

17. On marshalling the aforesaid material piece of evidence the defence of Appellant that complainant-Hakim himself threw the acid on his own wife appears to be probable and is based on preponderance. The Supreme Court in Man Singh (supra), has held that it is well settled that accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable. In another decision Punjabrao (supra), the Supreme Court in Para 3 has again reiterated the same principle by holding that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. In a later decision M.S. Narayana Menon alias Mani (supra), the Supreme Court in Paras 32 and 45 has held that the standard of proof of preponderance and probabilities on an accused is not as heavy as that of the prosecution and it may be compared with that of a Defendant in a civil proceeding. By placing reliance on these decisions of the Supreme Court, I am of the view that the evidence of defence is based on probability and preponderance, and therefore, due weightage should be given to it, and hence, I am of the view that Appellant is entitled for the benefit of doubt.

18. The evidence of defence witnesses namely Kallu (D.W. 1), Sobren (D.W. 2) and Mehboob Khan (D.W. 3) is also having weightage, because it has borne out from the testimony of Investigating Officer that he interacted with these witnesses, but their case diary statements were not recorded. According to me, the credibility of defence witnesses is at par with that of prosecution witnesses and their evidentiary value should not be side lines merely because they have been examined by the defence. In this context, I may profitably placed reliance on two decisions of the Supreme Court Munshi Prasad (supra) and Ram Singh (supra), which have placed reliance by the learned Counsel for Appellant.

19. So far as the motive part on account on account of money transaction is concerned, there is serious infirmity and improvement in the case diary statement of the injured Laxmi Bai (P.W. 2) as she has stated that the factum of transaction of money Rs. 60,000/- she did not narrate in her case diary statement (Exh. D-2).

20. The evidence of complainant Hakim (P.W. 1), is also very much material because, according to him, there was some money dispute, but this fact has not been stated by him in his case diary statement (Exh. D-1). According to me, the story of throwing acid by Appellant on account of some money transaction on the injured is an afterthought since such type of statement has not been given in the case diary statement. This witness has also admitted in Para 8 that the cot and the mattress on which the injured was sitting were also burnt. I have already marshalled the evidence of injured Laxmi Bai (P.W. 2) as well as the Investigating Officer Kedar Prasad (P.W. 12) that the mattress, pillow and cot have not been seized by the Investigating Officer in order to prove that on account of throwing acid over the injured, they were also burnt. Certainly if these articles would have seized, it would have thrown much light over the controversy. In the light of the statement of injured Laxmi Bai (P.W. 2) as well as her husband Hakim (P.W. 1), the evidence of Pan Singh (P.W. 10), Kalyan (P.W. 3) cannot be relied upon, who are interested in complainant being his near relative.

21. For the reasons stated hereinabove, I am of the view that the defence appears to be quite probable, and therefore, I hereby extend my benefit of doubt to the Appellant.

22. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction of Appellant is hereby set aside and he is acquitted from all the charges. Appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited by him, be refunded to him.