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2016 DIGILAW 1724 (HP)

State of H. P. v. Dolma

2016-08-20

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary, J. The appellant-State aggrieved and dissatisfied with the judgment dated 24.02.2011 passed by learned Sessions Judge, Kullu in Criminal Appeal No. 31 of 2009, whereby one of the accused Rintu Devi @ Guddi has been acquitted of the charge under Section 326 read with Section 34 of the Indian Penal Code, whereas, while modifying the conviction and sentence of the principal accused Dolma respondent herein, she has been convicted and sentenced to pay the fine of Rs.30,000/- under Section 323 of the Indian Penal Code instead of Section 326 of the Code, is in appeal before this Court. 2. The complainant in this case is Gian Chand (PW-1). He claims himself to be the victim of the occurrence allegedly taken place on 20.01.2003 around 8.00 a.m in his shop situate at Kashladhi Tehsil and District Kullu. Since he allegedly received injuries on his person on account of throwing acid by the principal accused Dolma on his face, therefore, immediately after the occurrence, she was removed to the zonal hospital, Kullu. The information mark ‘A’ qua throwing of acid on the person of PW-1 was received in Police Station, Sadar, Kullu. In order to verify the alleged occurrence, Sub Inspector Kamla (PW-6) rushed to the hospital. She made application Ext. PW-6/A to the Medical Officer on duty for seeking opinion as to whether PW-1 was fit to make statement or not. The Medical Officer has declared him fit and as such PW-6 has recorded his statement under Section 154 Cr.P.C, Ext. PW-1/A. The allegations he levelled in his statement Ext. PW-1/A, in a nut-shell, are that on 20.01.2003 around 8.00 a.m., both accused came to his shop and Dolma, the principal accused asked for a packet of milk. While in the process of taking out the milk packet to hand over the same to the said accused, she threw acid on his face. He cried for help. On hearing his cries, his neighbour Bir Singh (PW-5) arrived at the spot. He made him to put off the clothes, which he was wearing at that time. He also applied honey on the burnt spots on his face. On account of throwing acid on him, accused Dolma allegedly caused injuries on his face, hands and ankles. He apprehended danger to his life at the hands of accused Dolma. 3. On the basis of statement Ext. PW-1/A, FIR Ext. He also applied honey on the burnt spots on his face. On account of throwing acid on him, accused Dolma allegedly caused injuries on his face, hands and ankles. He apprehended danger to his life at the hands of accused Dolma. 3. On the basis of statement Ext. PW-1/A, FIR Ext. PW-6/A was registered by the then Inspector/SHO, Police Station, Sadar, Shiv Chaudhary. The endorsement Ext. PW-6/C on Ext. PW-1/A was also made by the SHO. PW-6 has also taken in possession the slip Ext. PW-2/A qua discharge of PW-1 from the hospital. On receipt of report of chemical examiner Ext. P-X, the file was handed over to Sanjay Sharma, Station House Officer. Further investigation was conducted by PW-4 Mohinder Singh. He inspected the spot on 23.01.2003 and prepared spot map Ext. PW-4/A. The record qua treatment of complainant Ext. P-1 to Ext. P-4 was taken into possession vide memo Ext. PW-2/A. Initially, the case against the accused was registered under Sections 336 and 323 of the Indian Penal Code. In view of the complainant was allegedly found under treatment as an ‘indoor patient’ for a period over 20 days, the case was converted from Section 323 IPC into Section 326. 4. On completion of the investigation, Challan against both the accused was filed. Learned trial Magistrate has framed the charge against the principal accused for the commission of offence punishable under Section 326 IPC, whereas, against her co-accused Rintu Devi @ Guddi under Section 326 read with Section 34 IPC. 5. Since both the accused have pleaded not guilty to the charge, therefore, the prosecution in order to sustain the charge against each of them has produced the evidence. Besides the complainant (PW- 1) and so called independent witness Bir Singh (PW-5), the prosecution has also examined Tharu Ram (PW-2), Dr. Sonam Chhering (PW-3). Mohinder Singh (PW-4), the then I.O/P.S Kullu. PW-6 Sub Inspector Kamla, the then incharge Women Cell, Kullu and PW-7 Dr. Shiv Prakash. 6. Both the accused were also examined under Section 313 Cr.P.C. Besides, Rintu Devi @ Guddi has also stepped into the witness box as DW-1. Learned trial Magistrate has convicted both the accused for the commission of offence punishable under Section 326 read with Section 34 of the Indian Penal Code and were sentenced to undergo two years rigorous imprisonment and also to pay Rs. 5000/- each as fine. 7. Learned trial Magistrate has convicted both the accused for the commission of offence punishable under Section 326 read with Section 34 of the Indian Penal Code and were sentenced to undergo two years rigorous imprisonment and also to pay Rs. 5000/- each as fine. 7. Learned lower appellate Court vide judgment under challenge while modifying the judgment passed by learned trial Court has acquitted accused Rintu Devi @ Guddi of the charge under Section 326 read with Section 34 of the Indian Penal Code, whereas, conviction and sentence of the principal accused Dolma was converted into under Section 323 of the Indian Penal Code and she has been sentenced to pay Rs. 30,000/- as fine. 8. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the prosecution evidence has not been appreciated in its right perspective. The testimony of the prosecution witnesses has been discarded for altogether untenable reasons without there being any proof of enmity. The acquittal of accused Rintu Devi @ Guddi is in utter disregard of the material prosecution evidence available on record. Accused Dolma went to the shop of complainant with acid bottle and her coaccused Rintu Devi @ Guddi was with her, therefore, ingredients of Section 34 of the Indian Penal Code are duly established. In view of the expert opinion, injury No. 4 on the person of PW-1 was grievous in nature and as such, conviction of both accused for the commission of offence punishable under Section 326 read with Section 34 of the Indian Penal Code was duly established. 9. While learned Additional Advocate General has sought the impugned judgment to be quashed and set aside and the judgment of conviction and sentence passed by learned Chief Judicial Magistrate, Lahaul Spiti and Kullu upheld and to maintain the conviction and sentence of both the accused for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code, learned defence counsel has urged that learned lower appellate Court has modified the judgment passed by the trial Court on appreciation of the evidence available on record in its right perspective and as such, the impugned judgment, according to him calls for no interference in the present appeal. 10. 10. As noticed at the very out set, charge against accused Dolma is that on 20.01.2003 at 8.00 a.m. she had thrown acid on the face of the complainant and caused grievous hurt to him, thereby committed an offence punishable under Section 326 of the Indian Penal Code. The charge against Rintu Devi@ Guddi is that in furtherance of common intention her co-accused voluntarily caused grievous hurt to the complainant by throwing acid on the face of the complainant and it is she who facilitated her co-accused in throwing acid and thereby committed offence punishable under Section 326 read with Section 34 of the Indian Penal Code. 11. This Court would first like to deal with the prosecution case against accused Rintu Devi @ Guddi. Learned lower appellate Court has not committed any illegality and irregularity while arriving at a conclusion that no case for the commission of offence punishable under Section 326 read with Section 34 of the Indian Penal Code is made out against her for the reason that there is no iota of evidence to infer that before the commission of alleged offence they both met at some place and planned there to throw acid on the face of the complainant. In the statement under Section 154 of the Code of Criminal Procedure, Ext. PW-1/A, the only allegation is that both accused came together and accused Dolma had asked for a packet of milk. The complainant was running a shop and it was free for each and everyone to have access to the shop. They both may have come to the shop together as they admitted in their statements recorded under Section 313 of the Code of Criminal Procedure, however, in the absence of cogent and reliable evidence suggesting that they had meeting of minds before coming to the shop of the complainant with an understanding that acid will be thrown on him by accused Dolma, the involvement of accused Rintu Devi @ Guddi is not at all established. Her mere presence at the time of occurrence in the shop of the complainant by any stretch of imagination does not establish her involvement in the commission of the offence. Her mere presence at the time of occurrence in the shop of the complainant by any stretch of imagination does not establish her involvement in the commission of the offence. There is nothing in the statement of complainant, who has stepped into the witness box as PW-1 and for that matter that of so called independent witness Shri Bir Singh, PW-5 that before throwing acid on the complainant, both accused had meeting of minds and it is intentionally and deliberately in furtherance of their common intention accused Dolma had thrown acid on the complainant. We are, therefore, in agreement with the findings of acquittal recorded by learned lower appellate Court on appreciation of the scope of Section 34 of the Indian Penal Code in its right perspective. The findings so recorded calls for no interference. 12. Now if coming to the involvement of accused Dolma in the commission of the offence, no doubt, as per defence of the accused emerges from the trend of cross-examination, when the complainant in order to assault accused Dolma sexually caught hold her arm and applied force to drag her inside the shop, the said accused also used force in the opposite direction to get herself released from the clutches of the complainant, when they on account of applying force from both sides got separated, the complainant fell down inside the shop, whereas, accused Dolma outside the shop. There was acid lying in the shop in a bottle. The complainant fell on that bottle and the acid in that bottle spreaded on his person and he got injured. Although, suggestions to this effect and also that accused Dolma had not brought acid with her have been denied by the complainant while in the witness box as PW-1 being wrong, yet in the absence of any evidence as to what was the motive to have thrown acid by the said accused on the person of complainant, the plea so raised by the accused appears to be nearer to the factual position. The another so called witness is Bir Singh, PW-5. As a matter of fact, even if his testimony is believed to be true, he was not present at the time of alleged occurrence as he arrived at the scene of occurrence on hearing alarm raised by the complainant. The another so called witness is Bir Singh, PW-5. As a matter of fact, even if his testimony is believed to be true, he was not present at the time of alleged occurrence as he arrived at the scene of occurrence on hearing alarm raised by the complainant. If his cross-examination is seen, according to him, he has not asked the complainant as to why accused Dolma had thrown acid on his person and as to what was the cause of the occurrence. It is worth mentioning that a person of ordinary prudence would always ask for cause of the occurrence from the victim. The conduct of PW-5 in not inquiring from the complainant as to what prompted accused Dolma to throw acid on his person casts doubt qua his presence on the spot. Though, it is difficult to believe that the occurrence has taken place in the manner as claimed by the prosecution, however, in view of accused Dolma has not assailed her conviction and sentence under Section 323 of the Indian Penal Code, therefore, no useful purpose is likely to be served to discuss this aspect of the prosecution case in detail. 13. Nothing is there in the statement of under Section 154 of the Code of Criminal Procedure Ext. PW- 1/A that acid was brought by accused Dolma with her yet learned lower appellate Court has arrived at a conclusion that it is she who had thrown acid on the person of complainant. The injuries on his person, however, not found to be grievous in nature in terms of Section 320 of the Indian Penal Code. The findings so recorded are legally and factually sustainable for the reason that PW-3 Dr. Sonam Chhering had no occasion to opine that the injury No. 4 on the person of complainant was grievous in nature for the reason that she has not operated him for corneal opacity of right eye. Such surgery was rather conducted in PGI Chandigarh. The doctor who has conducted such surgery at PGI Chandigarh has not been examined nor is his/her opinion produced in evidence. Therefore, learned lower appellate Court has rightly discarded the testimony of PW-3 to this effect. As a matter of fact, from the evidence available on record, no case is made out that the offence accused Dolma has committed is punishable under Section 326 of the Indian Penal Code. Therefore, learned lower appellate Court has rightly discarded the testimony of PW-3 to this effect. As a matter of fact, from the evidence available on record, no case is made out that the offence accused Dolma has committed is punishable under Section 326 of the Indian Penal Code. Learned lower appellate Court, therefore, has rightly set aside and quashed the conviction and sentence of the said accused under Section 326 of the Indian Penal Code. This Court finds no irregularity or illegality having been committed by learned lower appellate Court while recording such findings. 14. In view of what has been said hereinabove, the judgment under challenge is legally and factually sustainable. The same, as such, is affirmed and the appeal is dismissed. Personal bonds furnished by the accused shall stand cancelled and surety bonds discharged.