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Rajasthan High Court · body

2019 DIGILAW 2050 (RAJ)

Mohd Rizwan v. State

2019-07-29

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellant has been convicted and sentenced as below vide the judgment dated 02.05.2017 passed by learned Addl. Sessions Judge No.2, Jodhpur Metro in Sessions Case No.01/2015 (NCV No.64/2015) Under Section 307 IPC Life Imprisonment and fine of Rs.60,000/-, in default of payment of fine to further undergo two years' RI. Under Section 326A IPC Life imprisonment and fine of Rs.60,000/-, in default of payment of fine to further undergo two years' RI. (Both the substantive sentences were ordered to run concurrently.) 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:- 4. Mohd. Iqbal S/o Shri Mohd. Hanif (PW.1) submitted a written report (Ex.P/1) to the SHO PS Khanda Falsa, Jodhpur on 07.10.2014 alleging inter alia that his son Munawwar Hussain was sitting at their shop, situated at Miyo Ka Chowk, Piro Ka Challa, Near Dargah, Khanda Falsa, Jodhpur in the morning at about 9:30 am when the accused-appellant Mohd. Rizwan came around and indulged in looting. The informant also reached there and thereafter, he lodged a report of this incident at Police Station Khanda Falsa at 9 O' clock. Later on, when the first informant returned to his shop with his son, the accused-appellant Mohd. Rizwan came there carrying an acid bottle. He threw the acid on the first informant and his son. Due to the assault, the informant's son Munawwar Hussain (PW.10) got burnt on his eyes, face and hands. It was also alleged that the accused extorted that he would kill and then threw the acid at both of them. On the basis of this report, an FIR No.137/2014 was registered at Police Station Khanda Falsa, Jodhpur for the offences under Sections 323 and 326-A IPC. The investigation was commenced. 5. Both the injured i.e., the first informant Mohd. Iqbal (PW.1) and Munawwar Hussain (PW.10) were medically examined. As per the medico legal report (Ex.P/5), Mohd. Iqbal had two lesions on the left and right forearm, both of which were caused by corrosive substance. As per the injury report (Ex.P/6), the injured Munawwar Hussain (PW.10) had superficial to deep corrosive burn lesions with blackening and trickling marks present all over the face, left side of the neck, right upper limb and left forearm. Iqbal had two lesions on the left and right forearm, both of which were caused by corrosive substance. As per the injury report (Ex.P/6), the injured Munawwar Hussain (PW.10) had superficial to deep corrosive burn lesions with blackening and trickling marks present all over the face, left side of the neck, right upper limb and left forearm. The medical opinion regarding the injuries suffered by Munawwar Hussain was issued by the medical jurist as Ex.P/7 opining that the vision of the right-side eye had been adversely affected by the corrosive burns. The injury No.1 was opined to be grievous in nature whereas the injuries to the neck and the arms were opined to be simple in nature. The accused-appellant was arrested and after concluding the investigation, the Investigating Officer proceeded to file a charge-sheet against the accused-appellant for the offences under Sections 307 & 326-A IPC. Since both the offences were sessions triable, the case was committed and transferred to the Court of Addl. Sessions Judge No.2, Jodhpur Metro for trial. The trial court, framed charges against the accused-appellant for the above offences, who pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 18 documents and two articles to prove its case. 6. Upon being questioned under Section 313 Cr.P.C and when confronted with the prosecution allegations, the accused denied the same and claimed to have been falsely implicated. A specific plea was taken by the accused in defence that he had gone to the shop of the complainant for buying eggs. He was not having the full amount and thus, he returned home. The complainant Mohd. Iqbal and his son Munawwar Hussain came to his house and quarrelled with him. He was passing by the shop of the complainant when both father and son accosted him and beat him on his head by an acid bottle. He was suffering with a hole in his heart since birth and was not physically capable to quarrel. The accused appeared in the witness box as DW-1 wherein he proved his medical report (Ex.D/5). Dr. Adil Majid Belim (DW.2) proved the fact regarding the condition of hole in the heart with which the accused was afflicted. Dr. Narendra Vaishnav (DW.3) was examined to prove the injuries suffered by the accused in the selfsame incident. The injury No.1, located on the head, was caused by corrosive substance. Dr. Adil Majid Belim (DW.2) proved the fact regarding the condition of hole in the heart with which the accused was afflicted. Dr. Narendra Vaishnav (DW.3) was examined to prove the injuries suffered by the accused in the selfsame incident. The injury No.1, located on the head, was caused by corrosive substance. Numerous other injuries were noticed on the body of the accused. After hearing the arguments advanced by learned Public Prosecutor and the learned defence counsel and appreciating the evidence adduced on record, the trial court proceeded to admit the evidence of material prosecution witnesses viz. first informant Mohd. Iqbal (PW.1), Abdul Wahab (PW.4), Gayasudin (PW.5), Mohd. Arshad (PW.6) and Munawwar Hussain (PW.10) to be wholly reliable and corroborated by the evidence of Dr. Amit Srivastava, the medical jurist (PW.7) and proceeded to convict and sentence the appellant, as above. Hence, this appeal. 7. Shri Anand Purohit, learned Senior Counsel assisted by Shri Kapil Purohit, Advocate fervently tried to canvass that the conviction of the appellant as recorded by the trial court is absolutely unjustified. The prosecution is guilty of non-explanation of the serious acid burn injuries suffered by the accused-appellant in the same incident and as such, the evidence of the prosecution witnesses should be discarded. In arguendo, his submission was that as the incident took place at the spur of the moment without there being any prior intent or preparation on the part of the accused to inflict the acid injuries to the two injured persons and implored the Court to reduce the sentences awarded to the accused by the trial court for the offences under Sections 307 & 326-A IPC suitably offering that the accused is ready to pay appropriate compensation to the victim Munawwar Hussain (PW.10). 8. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by learned defence counsel and urged that the accused is a drug addict. He initially went to the shop of the victims and looted grocery items and money from there. The first informant Mohd. Iqbal went to the police station and reported the matter. On coming to know of the police complaint, the accused armed himself with the acid bottle and went back to the shop of the victims for taking revenge. He initially went to the shop of the victims and looted grocery items and money from there. The first informant Mohd. Iqbal went to the police station and reported the matter. On coming to know of the police complaint, the accused armed himself with the acid bottle and went back to the shop of the victims for taking revenge. He intentionally threw acid on to the two injured causing serious injuries to Munawwar Hussain which has damaged the vision of his right eye permanently. He further submitted that so far as the injuries of the accused are concerned, the same were received when the accused was trying to throw acid on to the victims who tried to resist and during this process, some of the contents of the acid bottle splashed on the accused as well resulting into the acid burns. He thus, urged that the impugned judgment is perfectly just and legal and the accused does not deserve any sympathy/leniency or relief whatsoever by this Court. 9. We have given our thoughtful consideration to the submissions advanced at the Bar and have threadbare reappreciated and sifted the evidence available on record and have carefully gone through the impugned judgment. 10. Learned Senior Counsel Shri Purohit rightly did not contest the fact that the accused caused the acid burn injuries to the injured persons. In spite of this candid concession of the learned defence counsel, we have gone through the evidence of material prosecution witnesses (referred to supra) and find that the first informant Mohd. Iqbal (PW.1) has alleged that the accused indulged in two incidents of aggression on the fateful day. In the first part, the accused came and indulged in looting at the grocery shop of the complainant. The complainant claims to have reported the matter at the Police Station Khanda Falsa. However, no such corresponding report or Roznamcha entry was proved during prosecution evidence. In the second part of the incident, the accused is alleged to have brought an acid bottle with him. He allegedly poured the acid on to the victims in order to take revenge regarding the first police report. However, no such corresponding report or Roznamcha entry was proved during prosecution evidence. In the second part of the incident, the accused is alleged to have brought an acid bottle with him. He allegedly poured the acid on to the victims in order to take revenge regarding the first police report. On going through the evidence of injured Munawwar Hussain (PW.10), who received the dangerous and grievous injuries in the main incident, it is clear that he did not allege that any incident took place in the morning at 9 O' clock or that he and his father Mohd. Iqbal had lodged a report against the accused at the Police Station Khanda Falsa. Thus, the said allegation of PW.1 Mohd. Iqbal, the first informant is not substantiated/corroborated. The main incident involving the assault by acid took place at about 9:30 am. The injured Munawwar Hussain (PW.10), the first informant Mohd Iqbal (PW.1), Abdul Wahab (PW.4) and Gayasudin (PW.5) all alleged that the accused came to their shop and poured acid upon them. The allegation regarding the victim having received corrosive burn injuries has been well established by the evidence of Dr. Amit Srivastava (PW.7) who examined the injured and issued the injury report (Ex.P/6) & medical opinion (Ex.P/7) of injured Munawwar Hussain. As per the statement of medical officer Dr. Amit Srivastava (PW.7) who treated Munawwar Hussain and issued the medical report (Ex.P/7), the injury No.1 was opined to be grievous in nature. The injured had four lesions on his body, all caused by corrosive substance and thus, we are of the definite opinion that the injuries were inflicted with the intention of killing/maiming the injured. Fortuitously, the injured survived the attack and lived to tell the tale. 11. In this background, we are of the firm opinion that the findings recorded by the trial court in the impugned judgment that the accused-appellant intentionally inflicted corrosive acid burns to the injured is well founded and based on sound appreciation of evidence available on record. Thus, the conviction of the accusedappellant as recorded by the trial court for the offences under Sections 307 & 326A IPC does not warrant any interference whatsoever by this Court. 12. Now coming to the aspect of the sentences awarded by the trial court to the accused for the above offences. Thus, the conviction of the accusedappellant as recorded by the trial court for the offences under Sections 307 & 326A IPC does not warrant any interference whatsoever by this Court. 12. Now coming to the aspect of the sentences awarded by the trial court to the accused for the above offences. In this regard, we have gone through the evidence of the prosecution as well as the defence witnesses. First and foremost, as we have found that the claim of the complainant that he lodged a report of looting against the accused-appellant at the PS Khanda Falsa and that the incident at hand was perpetrated by way of revenge against such action, is not substantiated as no such corresponding report/roznamcha entry was proved on record during the evidence of the material prosecution witnesses. Furthermore, the son of the complainant i.e., injured Munawwar Hussain (PW.10) himself did not state that any such previous report was lodged by him or by his father on the same day. Thus, the genesis of the occurrence, as stated by the first informant is falsified. 13. The accused has taken two fold defences. The first being that the complainant party was the aggressor and threw the acid on him and second being that he is having an hole in his heart due to which he is not physically capable to make the assault. However, we find that the theory that the complainant party was the aggressor and assaulted the accused first, appears to be a sheer afterthought and totally untenable. There is absolutely nothing on record to indicate why the complainant party would indulge into such act. Furthermore, numerous independent eye-witnesses whose names have been mentioned above in addition to the first informant and the injured stated that it was the accused who was having an acid bottle in his hand with which he poured acid on the two injured. Thus, the defence theory regarding the complainant party being the aggressor is totally unsubstantiated. As per the evidence of the defence witnesses i.e, the accused himself DW.1 and Dr. Narendra Vaishnav (DW.3), the accused was having corrosive burns injuries on his head, neck, right and left forearms. However, we feel that the possibility of these injuries having been caused when the complainant party was grappling with the accused in an attempt to save themselves from the attack is probablized from the attending circumstances. Narendra Vaishnav (DW.3), the accused was having corrosive burns injuries on his head, neck, right and left forearms. However, we feel that the possibility of these injuries having been caused when the complainant party was grappling with the accused in an attempt to save themselves from the attack is probablized from the attending circumstances. Nonetheless, we feel that the significant corrosive burn injuries suffered by the accused himself in the incident and the fact that as per the evidence of Dr. Adil Majid Belim (DW.2) who deposed that the accused was suffering from a hole in his heart, are mitigating circumstances to be considered while quantifying the sentences awarded to the accused appellant. The offence under Section 307 IPC carries imprisonment which may extend to 10 years and fine, imprisonment for life or to such punishment as hereinbefore mentioned. The offence under Section 326-A IPC carries minimum imprisonment of 10 years which may extend to imprisonment for life. Considered in the light of peculiar facts noted above, we feel that the ends of justice would be served by reducing the sentence of life imprisonment awarded to the accused by the trial court on both the counts to 10 years' R.I. and a fine of Rs.2,50,000/- each (total Rs.5,00,000/-). In default of payment of fine, the accused shall further undergo 2 years' RI. Both the substantive sentences shall run concurrently. The fine upon being realized shall be paid to the injured Munawwar Hussain. 14. The appeal is partly allowed in these terms. Record be returned to the trial court forthwith.