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2018 DIGILAW 1581 (ALL)

MAQBOOL v. STATE OF U. P.

2018-07-19

SAUMITRA DAYAL SINGH

body2018
JUDGMENT : Hon'ble Saumitra Dayal Singh, J. 1. Shri Bharat Singh and Shri Sudhir Dixit have file their appearance slip on behalf of opposite party no. 2, which is taken on record. 2. Heard Shri Vimlendu Tripathi along with Shri Kuldeep Johri and Shri Askari Hussain on behalf of the applicant, learned AGA for the State and Shri Bharat Singh along with Shri Sudhir Dixit on behalf of the opposite party no.2. 3. The present criminal revision has been preferred against the order dated 05.06.2018 passed by learned Additional Sessions Judge, Court no. 1, Pilibhit in Session Trial No. 117 of 2018 (State Vs. Maqbool and others), arising out of Case Crime No. 190 of 2017, under Section 147, 326A, 354Ka, 323, 504, 506 I.P.C., Police Station Neoria, District Pilibhit by which the application filed by the application seeking discharge qua the offence alleged under Section 326(A) of I.P.C. has been rejected. 4. Learned counsel for the applicant has vehemently urged that the learned court below has completely erred in rejecting the discharge application inasmuch as even if the entire prosecution story is accepted to be true and correct, there is no grievous hurt caused to the victim. Hence, the applicant can never be charged with commission of offence under section 326A I.P.C. 5. Elaborating his submissions, learned counsel for the applicant submits that throwing, administering or using or attempting to throw, administer or use acid on another person may give rise to one of the two offences under the I.P.C. i.e. either section 326A or section 326B that were introduced by Act No. 13 of 2013. 6. Relying on the section heading of section 326A I.P.C. and also the words "causes grievous hurt" used in the body of that section, it has been submitted, in the first instance, if any person is found to have caused a "grievous hurt" to another by throwing, administering or using in any other manner, any acid, such person may be said to have committed an offence, under section 326A I.P.C. Minimum punishment for such offence is ten years that may also extend to life imprisonment. 7. 7. Elaborating his submission, learned counsel for the applicant submits, to constitute an offence under section 326A I.P.C., the injury caused must be such as may be described as "grievous hurt" as defined under section 320 I.P.C. All injuries mentioned in section 326A fall under the term "grievous hurt" thus defined. Then it has been submitted, the phrase "such injury, used in the later part of section 326A, make it plain that the injury must be such as qualifies as "grievous hurt" used by way of last description of the injury given in the first part of that section. 8. Alternatively, learned counsel submits, various injuries specified under section 326A I.P.C. are grievous. Thus a partial or permanent damage or a deformity or maiming or a disability of any part/s of a body of the victim has to be construed as a "grievous hurt", as defined under section 326A I.P.C. Relying, both on the section heading and the use of that phrase in the body of section 326A, it has been submitted, the clear legislative intent is to prescribe a more severe punishment to cases of "grievous hurt" caused by throwing, administering or otherwise using acid on another. 9. Reference has also been made to other offences affecting human body involving grievous hurt and those not involving such hurt. It is submitted, necessarily, therefore, nature of injury has to be examined first to determine whether it qualifies as a "grievous hurt" or not. A case of simple or minor injury can never be equated or treated at par with "grievous hurt". That being the underlying legislative intent that permeates through section 326A as well, it would prevent any other construction from being made. Thus, a case of simple injury caused by throwing, administering or otherwise using acid, cannot be charged under section 326A of the I.P.C. 10. Even otherwise, it has been submitted, it would be wholly absurd, to treat at par, a case of simple injury with a case of "grievous hurt", irrespective of the fact that such injury may have been caused by throwing, administering or otherwise using acid. According to learned counsel for the applicant, such an interpretation would in any case lead to harsh unintended results. 11. According to learned counsel for the applicant, such an interpretation would in any case lead to harsh unintended results. 11. On the other hand, it has been submitted if a minor injury is caused by use of acid being thrown at any person or being attempted to be thrown or being administered to any person, such that, it may result in a minor injury or no injury to the victim, such person may be said to have committed a lesser offence that may result in lesser punishment of not less than five years that may extend only up to seven years, under Section 326(B) of the Act. 12. Reliance has also been placed on a Single Judge decision of the Rajasthan High Court in the case of Laddu Ram Vs. State of Rajasthan, Criminal Misc. Petition No. 681/2017, decided on 6.2.2017. 13. Learned AGA as well as learned counsel for the opposite party no. 2 urged that though it is true that offences arising from use of acid have been categorized in two parts, however, the basis of such categorization is whether any injury at all, has been caused or not or whether there was only an attempt to throw, administer or otherwise use acid with the intention to cause injury, though no injury was caused. They submit, the nature of injury, whether simple or grievous is not the basis for categorization of an offence under sections 326A and 326B. Any injury, whether simple or grievous would always fall within the mischief of section 326A and not 326B I.P.C. while mere attempt with intention to cause such injury, though actual injury may not caused alone would fall within the mischief of section 326B I.P.C. 14. Having considered the submissions advanced by the learned counsel for the parties, at present, on facts, according to medical report, the nature of injury (number 7) is stated to be "burn scar mark of 11cm by 8cm on the back of chest, 21 cm above neck, in ........(illegible)... spine (inverted horse shoe shape, superficial burn, red in colour, blister present)". Further, it has been noted with respect to the above injury "caused by some corrosive substance (smell present)". The words "hot liquid" appearing after the word 'some' and before word 'corrosive' have been scored out in the medical report. It is also stated in the report that all injuries suffered are simple in nature. 15. Further, it has been noted with respect to the above injury "caused by some corrosive substance (smell present)". The words "hot liquid" appearing after the word 'some' and before word 'corrosive' have been scored out in the medical report. It is also stated in the report that all injuries suffered are simple in nature. 15. Thus, as to the cause of aforesaid injury, at this stage, it has to be presumed to have been caused by a corrosive substance. Further, by virtue of Explanation 1 appearing after Section 326B, I.P.C., it has to be presumed, for the limited purpose of the present case, that the injury had been caused amongst others by the use of a substance in the nature of acid as defined thereunder. 16. Then, the nature of the actual injury, described as simple, cannot take the offence out of the ambit of Section 326A I.P.C. and make it fall under Section 326B of that Act. Unlike Sections 321 and 322 of the I.P.C, where a differentia exists with reference to nature/extent of hurt/injury caused, Section 326A I.P.C. does not recognise the extent of hurt or injury as an ingredient of that offence. 17. It may be noted, that even prior to introduction of section 326A & 326B, by Act No. 13 of 2013, any person who may have thrown, administered or otherwise used a corrosive substance/acid on another, could have been charged with offence under Sections 321 and 322 of the I.P.C. In those cases, it would be relevant to examine whether the injury intended and caused was grievous or not and to that extent definition of the term "grievous hurt" given in section 320 I.P.C. would be relevant. Similarly, for allegation of attempt to cause injury by throwing, administering or otherwise using acid, though no injury may have been caused, such concept may have been relevant. 18. However, material and drastic change has been introduced by Criminal Law (Amendment) Act, 2013. Similarly, for allegation of attempt to cause injury by throwing, administering or otherwise using acid, though no injury may have been caused, such concept may have been relevant. 18. However, material and drastic change has been introduced by Criminal Law (Amendment) Act, 2013. Wide spectrum of injuries that may be caused by use of acid, being either permanent damage or; partial damage or; deformity or; burn/s or maiming or; disfigurement or; disability to any part or different parts or; grievous hurt, if caused by throwing or administering or otherwise using a substance in the nature of acid, with intent or knowledge that such act is likely to cause such an injury or hurt, constitute commission of offence under Section 326A I.P.C. Further, Explanation 2 appearing after section 326B clarifies for the purpose of section 326A even a reversible partial damage or deformity would fall within the mischief of that section. At the same time, all types of burns (without any qualifying words) have been included in Section 326A and would constitute ingredient of an offence under Section 326A I.P.C., whether the damage caused is partial. Clearly, it is the factum of injury caused by acid and not the nature or extent thereof, that is relevant to constitute the ingredient of offence under section 326A I.P.C. 19. This shift of legislative intent, clearly expressed does not allow for any further debate whether the nature and extent of injury caused by throwing, administering or otherwise using acid, is relevant for the purpose of inferring whether offence is serious or not. That differentiation is irrelevant and or extraneous. The legislature has in its wisdom, categorised all injuries caused by use of acid to constitute a separate/special offence. Therefore, the submission advanced by learned counsel for the applicant, that only if a grievous injury would qualify for an offence under section 326A, cannot be accepted and is rejected. 20. The provisions of Section 326B I.P.C. on the other hand countenance a situation where no injury may have been caused by an attempt to throw, administer or otherwise use a substance in the nature of acid with intent to cause any injury of the above discussed category would be sufficient to constitute an offence of that section. Upon introduction of section 326B, even in absence of injury, such an attempt would constitute an ingredient for commission of offence under that section. Upon introduction of section 326B, even in absence of injury, such an attempt would constitute an ingredient for commission of offence under that section. Thus, for the purpose of the constitution of offence under Section 326B I.P.C., it is sufficient for the prosecution to establish that the substance in the nature of acid was attempted to be used with intention to cause injury, though no injury may have been caused. 21. Thus, sections 326A and 326B are mutually exclusive. While for the purpose of section 326A, an actual injury of the description given in that section, by throwing, administering or otherwise using acid, is a necessary ingredient, the mere attempt to cause such injury with intent or knowledge that such injury is likely to be caused is sufficient to constitute an offence under section 326B, though no injury may have been caused. 22. Thus, Section 326A creates a special offence in case of injury caused by use of acid while section 326B carves out a special exception to the general law regarding attempt to commit an offence by treating it as a separate offence. 23. Thus the submission advanced by the learned counsel for the applicant, since at most only a simple injury had been suffered by the victim (upon use of substance that may be in the nature of acid), it would constitute an offence under Section 326B I.P.C. (and not an offence under Section 326A of the Act), cannot be accepted. 24. In view of it appearing at present that an injury had been caused by use of a substance that at present appears to be acid, the applicant is liable to be proceeded against under section 326A and not 326B I.P.C. It will however remain open to the applicant during trial, to contest both the injury as also the cause of injury (being acid). Further, it would remain the burden of the prosecution to establish that the applicant had used the acid with intent to cause injury and or the knowledge, that its use is likely to cause such injury. 25. Insofar as the decision of the Rajasthan High Court is concerned, I am unable to persuade myself to that view for the reasons above stated. The said judgment does not appear to consider or take note of the clear distinction that exists between the language of sections 326A and 326B I.P.C., as noted above. 25. Insofar as the decision of the Rajasthan High Court is concerned, I am unable to persuade myself to that view for the reasons above stated. The said judgment does not appear to consider or take note of the clear distinction that exists between the language of sections 326A and 326B I.P.C., as noted above. I do not find any legislative intent, either express or implied to distinguish between the two offences, based on the nature or extent of injuries caused upon use of acid. The Rajasthan High Court has in its judgment, concluded that grievous hurt is a necessary ingredient of offence under Section 326A I.P.C.. However, in view of reasons given above, I am unable to reach such a conclusion. 26. No other argument has been raised. 27. Thus, for the present purposes, it has to be assumed that the ingredients of offence under section 326A I.P.C. stands made out against the applicant. The learned court below did not commit any error in rejecting the discharge application filed by the applicant. All other aspects would remain a matter to be considered during trial where evidence would have to be led and the prosecution would have to prove the charge/s that may be framed against the applicant, without being influenced by any observation (as to merits), made in this order. 28. The application is accordingly dismissed.