The Bombay High Court has affirmed that in cases of grievous bodily harm involving chemical attacks, the presence of forensic residues on the accused’s clothing, corroborated by consistent victim testimony and established motive, can sustain a conviction even when key prosecution witnesses are declared hostile. This ruling reinforces the evidentiary weight of scientific analysis in violent crimes where direct eyewitnesses may recant.
Background & Facts
The Dispute
The appellant, Abuzar Ayyaz Tamboli, was convicted for allegedly throwing acid on the face of a minor female acquaintance in Pune on 23 November 2020. The victim, then 17 years old, had previously been in a relationship with the accused but had married another man. She claimed that during a meeting near a public toilet, the accused threatened her with the words, "तुझे आपने आपपर गुरूर है ना, देख मैं अभी तेरा गुरूर तोड देता हूँ" and threw a liquid from his hand onto her face, causing severe burns.
Procedural History
- 23 November 2020: First Information Report (FIR) registered at Dattavadi Police Station after victim was admitted to hospital with facial burns.
- Investigation: Seizure of victim’s and accused’s clothing; chemical analysis conducted; statement of victim recorded under Section 164 Cr.P.C.
- Trial Court (2022): Convicted accused under Section 326-A, Section 354-D, Section 506 of IPC, and Sections 10 and 12 of the POCSO Act; sentenced to 10 years’ imprisonment.
- 2022 Appeal: Accused challenged conviction on grounds of hostile witnesses and lack of direct proof of acid procurement.
Relief Sought
The appellant sought acquittal, arguing that the prosecution failed to prove the identity of the assailant beyond reasonable doubt due to contradictory statements by witnesses and absence of evidence regarding the source of the acid. Alternatively, she sought reduction of sentence.
The Legal Issue
The central question was whether conviction under Section 326-A IPC can be sustained solely on circumstantial evidence - including chemical residues on the accused’s clothing, victim’s testimony, and motive - when key prosecution witnesses, including the victim, are declared hostile.
Arguments Presented
For the Appellant
Counsel argued that the prosecution’s case collapsed due to hostile testimony from the victim’s father (PW-4) and independent witnesses (PW-1, PW-2, PW-3), who did not corroborate the claim that the accused threw the acid. She contended that the victim’s testimony was internally inconsistent: during examination-in-chief, she suggested someone else threw the substance, while in cross-examination by the prosecution, she implicated the accused. Relying on Rajkumar Singh v. State of Rajasthan and Shivaji Shankar Zagade v. State of Maharashtra, she asserted that where two versions exist, the benefit must go to the accused. She further argued that the prosecution’s failure to establish how the accused procured the acid rendered the case incomplete.
For the Respondent/State
The Additional Public Prosecutor and counsel for Respondent No. 2 contended that the victim’s cross-examination testimony was clear, consistent, and unshaken by defence questioning. They emphasized that the detection of nitrate ions on the accused’s seized clothing, coupled with his presence at the scene and motive, formed a complete chain of circumstantial evidence. They cited State v. K. S. N. Murthy to argue that the absence of proof of procurement does not negate guilt where the act itself is proven beyond doubt.
The Court's Analysis
The Court acknowledged that several prosecution witnesses, including the victim, were declared hostile. However, it reaffirmed the settled principle that the testimony of a hostile witness is not to be discarded entirely but must be evaluated for reliability. The Court found that the victim’s cross-examination, conducted by the prosecution, contained a clear, unambiguous account of the accused throwing the substance, and she explicitly denied the defence’s suggestion that her husband was responsible.
"The evidence laid by the prosecution unerringly shows that the accused is the one who had thrown the acidic substance on the face of the victim which caused burn injuries to her."
The Court placed decisive weight on the chemical analysis report (Exh. 19 and 20), which confirmed the presence of nitrate ions on the accused’s clothing. It reasoned that the detection of such residues on the accused’s garments, when he was present at the scene and the victim’s clothing showed corresponding damage, made it scientifically implausible that the substance was thrown by another person. The Court held that the accused, having failed to offer any explanation under Section 313 Cr.P.C. for the presence of these residues, bore the burden of rebutting the inference.
The Court further noted that motive was clearly established through the victim’s testimony regarding the accused’s resentment after her marriage and his threatening utterance immediately before the attack. The Court rejected the argument that the prosecution’s failure to trace the source of the acid invalidated the case, observing that Section 326-A IPC requires proof of the act and its consequences, not the procurement mechanism.
Regarding the POCSO Act conviction, the Court held that Section 3 of the Act requires a sexual assault or sexual intent, which was entirely absent here. The act was one of grievous harm motivated by revenge, not sexual violation. Therefore, the conviction under POCSO was set aside.
The Verdict
The appeal was dismissed. The Court upheld the conviction under Section 326-A IPC and the 10-year sentence, but quashed the conviction under the POCSO Act. The Court held that the circumstantial evidence, including forensic findings and victim testimony, was sufficient to prove guilt beyond reasonable doubt.
What This Means For Similar Cases
Circumstantial Evidence Can Sustain Conviction in Acid Attacks
- Practitioners must prioritize forensic evidence - especially chemical residue analysis - in acid attack cases, even when eyewitnesses turn hostile.
- The presence of corrosive residues on the accused’s clothing, when linked to the crime scene, creates a compelling inference of direct involvement.
- Prosecution need not prove the source or procurement of the acid; proving the act and its consequences suffices under Section 326-A IPC.
Hostile Witness Testimony Is Not Fatal to Prosecution
- A witness declared hostile may still provide reliable evidence if their cross-examination testimony remains consistent and uncontradicted.
- Courts will assess the substance of testimony, not its label; the victim’s cross-examination by the prosecution was pivotal here.
- Defence attempts to exploit inconsistencies must be met with focused rebuttal of the most credible version of events.
POCSO Act Requires Sexual Intent - Not All Violence Against Minors Qualifies
- Prosecutors must carefully distinguish between grievous harm and sexual assault when invoking POCSO.
- Acts of violence against minors motivated by revenge, jealousy, or social control do not attract POCSO unless sexual intent is proven.
- This judgment clarifies that Section 3 of POCSO is not a catch-all provision for any crime against a child.
