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Madhya Pradesh High Court · body

2003 DIGILAW 1151 (MP)

CHANDU @ CHANDRASHEKHAR v. STATE OF M. P.

2003-10-10

S.L.JAIN

body2003
JUDGMENT : Appellant Chandu alias Chandrashekhar stands convicted for offences punishable under sections 307 and 324, Indian Penal Code and sentenced to R.I. for ten years with fine of Rs. 5,000.00 and R.I. for three years with fine of Rs. 2,000.00 respectively, by the impugned judgment and order dated April 30, 1997 passed by Additional Sessions Judge, Sagar in Sessions Trial No. 13/97. 2. The prosecution case, in brief, is that Babulal (PW 2) was running a hotel wherein he used to sell food, tea and sweetmeats. On 10-11-1996, which was a Deepawali day, at 4.30 P.M. Babulal was selling articles to his customers. The appellant came to his shop and asked him to give 1 Kg. of sweet for Rs. 20.00 only. When Babulal expressed his inability to give the sweet at this rate, the appellant started abusing Babulal. When Babulal asked him not to abuse, the appellant gave him threats and went towards his house. After some time the appellant came to the hotel with a steel can containing acid therein and poured the acid on Babulal. When Arvind (PW 1), who is nephew of Babulal, tried to save Babulal, the appellant threw acid on him also. While appellant was throwing acid on Arvind (PW 1), it also dropped on Leela Bai, Saraswati Bai, Kanchan, Manohar and Kashi Bai, who were present at the spot at the time of incident. The FIR of the incident, Ex.P-1, was promptly lodged by Arvind (PW 1) at P.S. Motinagar, which was recorded by Ravi Sharma (PW 11). 3. Babulal, Arvind, Kanchan, Manohar, Leela Bai, Kashi Bai and Saraswati Bai were sent to District Hospital, Sagar for medical examination. They were examined by Dr. Arun Saraf (PW 8). Dr. Saraf found the following injuries on the person of Babulal and submitted his report as per Ex.P-8 :- (1) Burn over face, neck, chest, abdomen and back. (2) Complaint of pain/burn over both eyes. Dr. Saraf found the following injury on the person of Arvind and submitted his report as per Ex.P-9 :- Acid burn over left arm, left chest and left shoulder. Dr. Saraf found the following injuries on the person of Kanchan and submitted his report as per Ex.P-10 :- (1) Burn over face, neck, both hands and back. (2) Complaint of pain/burn/diminished vision of both eyes. Dr. Dr. Saraf found the following injuries on the person of Kanchan and submitted his report as per Ex.P-10 :- (1) Burn over face, neck, both hands and back. (2) Complaint of pain/burn/diminished vision of both eyes. Dr. Saraf found the following injury on the person of Manohar and submitted his report as per Ex.P-11 :- Superficial burn over left arm and elbow. Dr. Saraf found the following injury on the person of Leela Bai and submitted his report as per Ex.P-12 :- Burn over right arm, size 3 cms. x 1 cm. Dr. Saraf found the following injuries on the person of Kashi Bai and submitted his report as per Ex.P-13 :- (1) Superficial burn over right thigh, knee and leg. (2) Superficial burn over left leg. Dr. Saraf found the following injuries on the person of Saraswati Bai and submitted his report as per Ex.P-14 :- (1) Superficial burn over left arm and forearm. (2) Superficial burn over abdomen. Dr. Saraf opined that the injuries to the above referred persons were caused by some chemical substance within 12 hours of their examination. 4. S.I., G. K. Tiwari (PW 15) recovered a Saree, article-B, a petticoat, article-C, a bedsheet, article-D and a bottle, article-E as per seizure memo, Ex.P-3. A steel can was seized at the instance of appellant, as per Ex. P-6. He also seized a fullpant, article-F, which Arvind was wearing at the time of incident and another fullpant, article-G, which Babulal was wearing at the time of incident, as per seizure-memo, Ex.P-7. This witness had also prepared spot-map Ex.P-26. Seized articles were sent to F.S.L., Sagar. Ex.P-27 is the report of F.S.L., Sagar. 5. Babulal remained in the District Hospital, Sagar for about a few days and thereafter, he was shifted to Choithram Hospital, Indore, where he was examined by Dr. Vasundhra Kalewal (PW 13) and Dr. Shobha Chamunia (PW 14). 6. After investigation a challan was filed against the appellant for the aforesaid offences and the case was committed to the Court of Session. 7. The learned Additional Sessions Judge framed charge against the appellant for the offences punishable under section 307 and 324, Indian Penal Code. The appellant abjured the guilt and claimed to be tried. His defence, as appears from his statement under section 313, Criminal Procedure Code, is that he had gone to a Paan shop near the shop of Babulal. 7. The learned Additional Sessions Judge framed charge against the appellant for the offences punishable under section 307 and 324, Indian Penal Code. The appellant abjured the guilt and claimed to be tried. His defence, as appears from his statement under section 313, Criminal Procedure Code, is that he had gone to a Paan shop near the shop of Babulal. He asked the Paan vendor for a Paan. He wanted to sit on a bench lying near the Paan shop. A steel can was lying on that bench. Before sitting on the bench, he picked up that can and put the same near the shop of Babulal. When Babulal opened lid of that can, some acid from the can fell on the ground. When acid fell on the ground then only he could feel that it was not water but was acid. Thereafter, when Babulal tried to pour the acid from the can on him, he made an attempt to save himself. In that attempt acid fell on Babulal. Thereafter, he ran away from the place of occurrence. 8. On the basis of above prosecution case, the trial Court came to the conclusion that the prosecution established its case and the appellant is responsible for the offences alleged against him, and, accordingly, by the impugned judgment and order convicted and sentenced him as indicated above. 9. Aggrieved by the conviction and sentence aforesaid, the appellant has filed this appeal. 10. I have heard Ms. Jyoti Agnihotri, learned counsel appearing for the appellant and Shri R. N. Yadav, learned Panel Lawyer appearing for the State and perused the record of the trial Court. 11. Ms. Jyoti Agnihotri led me through the record and contended that the learned Additional Sessions Judge erred in accepting the prosecution evidence and not accepting the explanation given by the appellant in his statement under section 313, Criminal Procedure Code. She submitted that the conviction and sentence imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside. 12. On the other hand, Shri R. N. Yadav, learned State counsel has supported the judgment recorded by the learned trial Court convicting and sentencing the appellant as indicated above. 13. She submitted that the conviction and sentence imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside. 12. On the other hand, Shri R. N. Yadav, learned State counsel has supported the judgment recorded by the learned trial Court convicting and sentencing the appellant as indicated above. 13. In support of its case, the prosecution examined Arvind (PW1), Babulal (PW2), Saraswati Bai (PW 4), Leela Bai (PW 9), Manohar (PW 10) and Kashi Bai alias Laxmi Bai (PW 12) as eye witnesses of the incident. It also examined Dr. Arun Saraf (PW 8) who medically examined the victims of the incident, Dr. Vasundhra Kalewal (PW 13) and Dr. Shobha Chamunia (PW 14) who examined the injured Babulal at Choithram Hospital, Indore. 14. Babulal (PW 2) has stated that on the relevant date he was present at his hotel. It being the Deepawali day, sweets were kept outside the shop for sale. There was crowed in his shop and his nephew Arvind was also sitting with him. At that time the appellant came to his shop and asked for 1 kg. of sweet for Rs. 20.00 only. When he refused to give sweet to the appellant at that rate, he started abusing him and went towards his house giving him threats. After 5-7 minutes the appellant again came to his shop with a steel can and poured acid on him from the can. When his nephew, Arvind tried to catch hold the appellant, he poured the remaining acid on him. Hearing the cries, his wife Leela Bai also came to the spot who sustained burns. Certain customers also sustained acid burns. 15. The statement of Babulal (PW 2) has been corroborated by other witnesses, namely, Arvind (PW 1), Saraswati Bai (PW 4), Leela Bai (PW 9) and Kashi Bai (PW 12). That apart, the FIR, promptly lodged by Arvind (PW 1) soon after the incident also corroborates statement of Babulal (PW 2). The learned trial Court relied on the evidence of these witnesses. I also do not find any reason to take a different view. 16. Learned counsel for the appellant has submitted that the defence of the appellant as disclosed by him in his statement under section 313, Criminal Procedure Code is plausible and in view of his explanation the prosecution witnesses cannot be believed. The explanation of the appellant is apparently an after-thought. 16. Learned counsel for the appellant has submitted that the defence of the appellant as disclosed by him in his statement under section 313, Criminal Procedure Code is plausible and in view of his explanation the prosecution witnesses cannot be believed. The explanation of the appellant is apparently an after-thought. No suggestion has been given to any of the prosecution witnesses regarding the explanation. As against this, I do not find any reason to disbelieve the statement of injured witnesses. 17. To discard the evidence of injured witnesses, the Court requires very convincing reasons. The injured witnesses in this case are eye witnesses of the incident as well. Their statements are corroborated by the medical evidence. The injuries suffered by the witnesses at least permit a reasonable inference that they were present on the spot at the time of occurrence. In fact, their injuries afford a strong guarantee of their presence at the scene of occurrence. The absence of motive to falsely implicate the appellant lends further assurance and there is no reason why the injured witnesses would falsely implicate the appellant against whom they had no grouse. I do not find any substance in the plea that the evidence of the alleged eye witnesses of the prosecution is not acceptable. 18. Learned counsel for the appellant next contended that the essential ingredients required to be proved in the case of an offence under section 307, Indian Penal Code have not been proved. 19. On perusal of section 307, Indian Penal Code I find that the essential ingredients which are required to be proved in a case for offence under section 307, Indian Penal Code are as follows :- (1) That the death of human being was attempted. (2) That such death was attempted to be caused by, or in consequence of, the act of the accused. (2) That such death was attempted to be caused by, or in consequence of, the act of the accused. (3) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature; to cause death or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. 20. In order to attract section 307, Indian Penal Code, it is necessary that if the victim would have met his death, the offence would have been one under section 302, Indian Penal Code. An attempt to commit a crime is an act done with intent to commit that crime, and would constitute its actual commission, if not interrupted. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deducted from other circumstances, and may even, in some cases, be ascertained without any reference at all to the actual injury sustained. 21. A person commits an offence under section 307, Indian Penal Code when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. An attempt is an intended, but unfinished, crime, tending, but failing, to effect its commission. Specific intention to commit the crime of murder is a necessary pro-requisite of the section. To bring a case within the ambit of section 307, the prosecution has to make out facts and circumstances envisaged by section 300, Indian Penal Code. If the ingredients of section 300 are wholly lacking, there can be no conviction under section 307, Indian Penal Code. To bring a case within the ambit of section 307, the prosecution has to make out facts and circumstances envisaged by section 300, Indian Penal Code. If the ingredients of section 300 are wholly lacking, there can be no conviction under section 307, Indian Penal Code. Unless it can be said that the intention or knowledge of the accused was to cause such bodily injury as would come within one of the four clauses of section 300, Indian Penal Code, he cannot be held guilty of an offence punishable under section 307, Indian Penal Code. 22. Dr. Arun Saraf (PW 8) who first examined Babulal, doss not say that the acid burn injuries which were sustained by Babulal were sufficient in the ordinary course of nature to cause death. Dr. Shobha Chamunia (PW 14) has stated that Babulal has sustained 20.5% burns. She has also stated that if Babulal would not have been properly treated, his death could have occurred due to infection. Dr. Vasundhara Kalewal (PW 13) who treated Babulal also does not say that the injuries sustained by Babulal were sufficient in the ordinary course of nature to cause death, but from the evidence of this witness it is clear that the injuries resulted in permanent prievation of the seight of left eye. 23. When the appellant was charged only for offence punishable under section 307, Indian Penal Code he can be convicted under section 326, Indian Penal Code so far as it relates to causing injuries to Babulal. The act of the accused falling short of capable of causing death, will amount to an offence under section 326, Indian Penal Code. Therefore, appellant would be liable to be convicted for offence punishable under section 326, Indian Penal Code and not under section 307, Indian Penal Code. Accordingly, the conviction and sentence of imprisonment awarded to the appellant for offence punishable under section 307, Indian Penal Code stands set aside and instead, he is convicted for offence punishable under section 326, Indian Penal Code. 24. Under the facts and circumstances of the case, I do not find any reason to interfere with the conviction imposed upon the appellant by the trial Court for offence punishable under section 324, Indian Penal Code. 25. 24. Under the facts and circumstances of the case, I do not find any reason to interfere with the conviction imposed upon the appellant by the trial Court for offence punishable under section 324, Indian Penal Code. 25. So far as the sentence for offence punishable under section 326, Indian Penal Code is concerned, the case is too old and the appellant is already in jail for more than six years, therefore, the sentence of imprisonment for the period already undergone by the appellant will meet the ends of justice. Accordingly, the appellant is sentenced to imprisonment for the period already undergone by him for offence punishable under section 326, Indian Penal Code. The substantive sentence of imprisonment awarded under section 324, Indian Penal Code is also maintained. Both the sentences to run concurrently. 26. Keeping in view the substantive sentence of imprisonment awarded to the appellant, the sentences of fine imposed upon him are set aside. 27. The appellant is in jail. He is directed to be released forthwith, if not required in any other case.