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2012 DIGILAW 459 (HP)

State of Himachal Pradesh v. Dalip Kumar

2012-08-27

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT : Deepak Gupta, J. This appeal by the State is directed against the judgement dated 28.10.2005 passed by the learned Judicial Magistrate, 1st Class, Court No. 2, Mandi whereby she acquitted the accused of having committed an offence punishable u/s 326 IPC. The prosecution story is that the accused on 7th April, 2001 threw acid on the face of the victim causing grievous injuries to her. The learned trial Court after trial acquitted the accused and hence this appeal by the State. 2. The undisputed facts are that the prosecutrix (PW-3) Sheela Devi was taken to the hospital on 7th April, 2001 before noon with alleged history of acid being thrown on her by some passer-by about 15 minutes earlier. The police was informed about this incident telephonically by the doctor. PW-2 Dr. Priya, M.O. Zonal Hospital, Mandi, who found the following injuries on the person of injured Sheela Devi:- i) There are burn mark on the right side of face from right eye brow to the chin, as shown in the diagram. ii) There was haziness of right cornia for that referred the patient to eye specialist. iii) There were burn on the front of the neck as chemical trickled from the face as shown in the diagram. iv) There were multiple burn injuries on the right side of breast outer quartrant. v) Multiple burn injuries on the right shoulder. vi) Multiple burn injuries on the right forearm and hand. vii) Multiple burn injuries anterior on left forearm. 3. Sheela Devi was admitted in the hospital and according to the doctor the injuries were grievous in nature caused by the acid. After the police was informed, it reached the hospital and the statement of complainant Sheela Devi was recorded at about 2.30 p.m. The same is Ext.PW-3/A. In this statement Sheela Devi stated that she does sewing work at her house. On 7th April, 2001 she alongwith her mother Nikki Devi had gone to the Punjab and Sind Bank to withdraw money and buy some goods. She had gone to the bazaar at Mandi after withdrawing money from the bank and purchased some goods from the market. When they were returning home, near the Meat Market there is a shop of one tailor. At about 11.25 a.m one boy namely Dalip Kumar (accused) came from behind. This person was carrying a steel tumbler in his hand. She had gone to the bazaar at Mandi after withdrawing money from the bank and purchased some goods from the market. When they were returning home, near the Meat Market there is a shop of one tailor. At about 11.25 a.m one boy namely Dalip Kumar (accused) came from behind. This person was carrying a steel tumbler in his hand. He crossed Sheela Devi and then threw the contents of the glass on her face. Her right eye, right portion of her face, both her arms, throat, chest were burnt. Thereafter Dalip ran away from the spot and thereafter her mother had brought her to the zonal hospital Mandi for treatment. The complainant also stated that Dalip wanted to marry her. She did not agree to the proposal of Dalip since her marriage was already fixed. Dalip had threatened her earlier also that in case she did not marry him then he would destroy her face. She clearly stated that Dalip had thrown acid on her face. Thereafter investigation was carried out by the police and after completion of investigation the accused was charged with having committed the offence aforesaid. After trial he has been acquitted. Hence, this appeal. 4. Shri Vivek Thakur, learned Additional Advocate General submits that the learned trial Court has not only erred in acquitting the accused but according to him the judgement is perverse since no reason has been given for discarding the testimony of the victim and her mother. Merely because some pieces of the link evidence is missing, is no ground to acquit the accused. On the other hand Shri Tarlok Chauhan, learned counsel for the accused submits that in the MLC Ext.PW-2/A it is only alleged that acid was thrown by some passer-by and if actually the accused had thrown the acid the victim would have told his name to the doctor. He further submits that the prosecution has failed to prove from where the acid was bought; the recovery of tumbler is not proved; it is not proved that the tumbler contained acid and therefore, the chances of the accused having been falsely implicated cannot be ruled out. 5. We have gone through the evidence in detail. There is no dispute that the burn injuries as detailed here-in-above have been caused to complainant Sheela Devi. While appearing in Court, the stand of Sheela Devi was consistent. 5. We have gone through the evidence in detail. There is no dispute that the burn injuries as detailed here-in-above have been caused to complainant Sheela Devi. While appearing in Court, the stand of Sheela Devi was consistent. She again stated that at about 11.25 a.m when she was walking outside the shop of the tailor near the Meat Market, Dalip came running from behind. He was carrying a tumbler in his hand and he threw the contents of the tumbler on her face. The tumbler contained acid due to which she suffered various burn injuries on her face, eyes, throat, arms, chest, etc. Thereafter, Dalip ran away towards the market. Her cross-examination is mainly to the effect that the area on which the complainant was moving is a public path and there is a lot of public around the area. She also admits that the shop of Param Dev, tailor, was open and she also states that Param Dev came out immediately after the incident. According to her, her mother Nikki Devi was walking one or two steps ahead of her. A suggestion has been put to the witness that the acid was thrown by the accused from behind. She denied the suggestion and stated that the accused first moved one step ahead and then threw the acid. She has denied the suggestion that she wanted to get married to the accused and because her mother was forcing her to get married somewhere else she had thrown acid on herself. This virtually amounts to admission that the complainant suffered injuries through acid. Another suggestion put to this witness is that after throwing the acid on her the accused ran away from the spot. According to her she had informed her mother about the threat given to her by the accused that he would disfigure her face. 6. PW-4 Nikki Devi is the mother of the complainant. Her statement is similar and consistent with that of the complainant. There are no contradictions in the statements of the mother and the daughter. Even to the mother a suggestion has been put that the accused threw acid from behind. She also admits that one or two persons had seen the accused throwing the acid on the complainant. She denied the suggestion that the complainant had thrown the acid on herself. 7. Even to the mother a suggestion has been put that the accused threw acid from behind. She also admits that one or two persons had seen the accused throwing the acid on the complainant. She denied the suggestion that the complainant had thrown the acid on herself. 7. The other witnesses have not supported the prosecution case and the recovery of the glass is not proved. The prosecution also failed to prove from where the accused purchased the acid. The learned trial Court acquitted the accused on the following grounds:- (i) That the prosecution had failed to prove that the acid was purchased from the shop of Jai Pal; (ii) that Param Dev, the tailor, outside whose shop the incident took place, was not examined though both the complainant and Nikki Devi stated that he had witnessed the occurrence; and (iii) that the recovery of the tumbler Ext.P-4 was not proved since both the witnesses to the recovery of the tumbler had turned hostile. Therefore, according to the learned trial Court the link evidence was not proved. 8. We are constrained to observe that the learned trial Court did not go into the question whether the statements of the complainant and her mother should be believed or not. The victim of a crime cannot be equated with the perpetrator of a crime. Here is a case where a young girl aged 18 years has been disfigured for life. Why should the statement of this witness and her mother who was an eye witness to the incident be swept aside and discarded only because the police has not done its job properly and the prosecution has failed to examine the tailor. In case the statements of these witnesses inspire confidence then there is no illegality in convicting the accused on the basis of the statement of the complainant. 9. We live in a country where people are hesitant to come to Court and appear as witnesses. More often than not witnesses turn hostile. The law by now is well settled that conviction can be based on the testimony of the victim and other related eye witnesses unless it is shown that the testimony of the eye witness is inconsistent or could be actuated by some past history of inimical relations between the parties. More often than not witnesses turn hostile. The law by now is well settled that conviction can be based on the testimony of the victim and other related eye witnesses unless it is shown that the testimony of the eye witness is inconsistent or could be actuated by some past history of inimical relations between the parties. It is in the light of the aforesaid position of law that we have to examine the statements of PW-3 and PW-4. 10. There is no inconsistency whatsoever in their statements. They have both clearly named the accused as the person who threw the acid. It is also not denied that the accused and the prosecutrix were acquainted with each other. In fact the case set up by the defence is that the complainant tried to throw the acid on herself because she did not want to get married with the person chosen by her mother. This itself shows that the complainant and the accused were known to each other. Not only have the complainant and the mother supported each other but the surrounding circumstances also fully proved the case. In the testimony of the complainant it is clearly stated that they first went to the bank, withdrew some amount and then made some purchases. The mother also states that after withdrawing money from the bank they made purchases including some purchases from a jeweller. The complainant was to get married one week later on 14th April, 2001. She in fact did get married on that date. Therefore, it was natural that they went to the bank, withdrew money and purchased jewellery. It also stands proved that the burn injuries on the person of the complainant were caused by acid being thrown. As per the defence the acid was thrown by the complainant herself. This story is totally unbelievable. Why should a young girl aged 18 years whose marriage is fixed a week later and who is accompanying her mother to the bank and to the jeweller shop throw acid on herself that too in the middle of the bazaar. 11. This leaves us with only one issue whether the prosecution has proved beyond reasonable doubt as to whether it was accused who threw the acid on the complainant or not. 11. This leaves us with only one issue whether the prosecution has proved beyond reasonable doubt as to whether it was accused who threw the acid on the complainant or not. In view of the testimony of the complainant and her mother which inspires confidence and has a ring of truth around it, it can safely be believed that it was the accused who threw acid on the complainant. The complainant had no reason to falsely implicate the accused. No doubt, in the MLC Ext.PW-2/A the name of the accused is not mentioned but this could be for many reasons. PW-2 Dr.Priya in her testimony has stated that the injured was brought to her by the mother and sister with alleged history of acid being thrown by some passer-by about 15 minutes earlier. It is not clear whether the history was given by the victim, the mother or the sister. No question has been put to the witness in cross-examination as to whether it was the victim or the mother or the sister who gave this history to the doctor. We also cannot loose sight of the fact that many times doctors avoid giving the name of the alleged culprit in the Medico Legal Report. Therefore, mere non mention of the name of the accused in the MLC is of no help to him. Admittedly, the statement of the complainant Ext.PW-3/A was recorded soon thereafter in the hospital itself. She had no time to consult anybody and she has given a version which appears to be correct and her testimony in Court is virtually similar to her first version. There is no improvement in her testimony in Court. Her version has been supported by the mother. We find no reason to disbelieve the testimony of the complainant or her mother and the mere fact of non-examination of the tailor would pale into insignificance in view of the consistent testimony of the complainant and the mother which inspire confidence in the mind of the Court. 12. Though we would not convict the accused on the basis of some patently stupid suggestions put on behalf of the defence but as pointed out above a suggestion has been put to the complainant that the accused threw the acid from behind. Suggestions have also been put that after throwing the acid he fled away. 12. Though we would not convict the accused on the basis of some patently stupid suggestions put on behalf of the defence but as pointed out above a suggestion has been put to the complainant that the accused threw the acid from behind. Suggestions have also been put that after throwing the acid he fled away. This would also indicate that the presence of the accused at the spot was not denied and in fact it was virtually admitted that it was he who threw the acid. The acid has obviously been thrown from front as is apparent from the diagram/sketch which has been proved by doctor PW-2. This diagram is drawn on the MLC Ext.PW-2/A and shows burn injuries on the right side of the face of the complainant, the right side of her neck, her right chest and both her forearms. This is totally consistent with the version of the complainant that the acid was thrown from front. This would clearly show that the prosecutrix could see the person who threw the acid and could identify him. 13. In view of the above discussion, we are of the view that the mere non-examination of the tailor and the fact that the prosecution has failed to prove from where the accused purchased the acid and the prosecution failing to prove the recovery of the tumbler by itself is not sufficient to acquit the accused when the ocular testimony supported by the medical testimony and other attending circumstances is sufficient to prove that it was the accused who threw the acid on the face of the complainant and there is no need to look for other supporting and corroborative evidence. 14. The approach of the learned trial Judge to say the least has been highly technical and the learned trial Judge has not given any reason for discarding the testimony of the complainant and her mother. From the testimony of the doctor it is proved that the injuries caused on the prosecutrix are grievous in nature. The injuries were caused with acid, which is a dangerous and corrosive substance. Hence, we convict the accused of voluntarily causing grievous hurt to the complainant by use of dangerous means. Therefore, he is convicted of having committed an offence punishable u/s 326 IPC. The injuries were caused with acid, which is a dangerous and corrosive substance. Hence, we convict the accused of voluntarily causing grievous hurt to the complainant by use of dangerous means. Therefore, he is convicted of having committed an offence punishable u/s 326 IPC. The bail-bonds of the accused are cancelled and he be produced before us on 1st October, 2012 for hearing him on the issue of quantum of sentence. The Registry is directed to take follow up action.