Delhi District Court
State vs Shahnawaz @ Shanu on 16 July, 2016
FIR No.193/13 PS : Jyoti Nagar
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 193/13
Under Section : 326-A/307/34 IPC
Police Station : Jyoti Nagar
Sessions Case No : 111/16
Unique I.D. No. : 02402R0268582013
In the matter of :-
STATE
VERSUS
1. SHAHNAWAZ @ SHANU
S/o. Mohd. Sikandar,
R/o. H.No.8/9, Gali No.1,
Opposite Panchayti Baithak,
Kardampuri, Delhi.
2. AKBAR
S/o. Mohd. Yamin,
R/o. D-132/50, Gali No.6,
Bhagirathi Vihar, PS Gokalpuri,
Delhi-110094. ......ACCUSED PERSONS
Name and particulars of : MOHD. DILSHAD, S/o. Sh. Bindu Khan,
complainant R/o.H.No.468, Gali No.8, Kardampuri, Delhi.
Date of Institution : 23.08.2013
Date of Committal : 04.09.2013
Date of receiving in this Court : 22.01.2014
Date of reserving judgment : 31.05.2016
Date of pronouncement : 16.07.2016
Decision : Convicted.
(Section 437-A Cr.P.C. complied with)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. On 26.05.2013, at 12:15 PM, on receipt of an information recorded vide DD No.12-A, regarding throwing of acid by two boys on another boy in gali no.5, Page 1 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar Kardampuri, HC Yashvir Singh along with Ct. Bhullan reached that place.
They came to know that injured was taken to GTB hospital by his brother. They also went to GTB hospital and obtained MLC of injured Dilshad, who was declared fit for statement. HC Yashvir Singh recorded statement of Dilshad. Dilshad alleged that he was running a shop of mobile phone in the house of Hanif, in gali no.5, Kardampuri, Delhi. Accused Shanu and Akbar had come to his shop to sell their old mobile phones. In the past, he had purchased old mobile phones from them on one or two occasions and thereafter, he had told them that he would not purchase old mobile phone any more and over such issue they had verbal altercation. On 26.05.2013, complainant was present at his shop. At about 11:45 AM, accused Shanu and Akbar had come to his shop and Shanu was having a steel glass with him. He asked Akbar to take glass of acid and throw the same on Dilshad so as to eliminate him. Akbar threw acid on the complainant at the instance of Shanu and thereafter, both of them fled away. On hearing hue and cry, brothers of complainant namely Shadab and Shahzad reached there. They made call at 100 number. However, prior to reaching of PCR van, Shahzad took complainant to GTB hospital. On the basis of aforesaid statement of complainant, FIR was registered under Section 307/34 IPC.
2. Crime team was called at the spot. Further investigation was assigned to SI Prempal Singh. Crime team took photographs of the spot and lifted remnants of acid from the counter of the shop. Cloth of victim was also taken into possession. Accused Shanu was arrested by police, however, accused Akbar was absconding. Doctor gave opinion that injured Dilshad had sustained grievous injury and thus, Section 326-A IPC was added in the case. Later on, accused Akbar was also arrested and a supplementary chargesheet was filed Page 2 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar after his arrest.
3. After completion of investigation, on 23.08.2013 chargesheet was filed by IO/SI Prempal Singh against accused Shahnawaz for offence under Section 326-A/307/34 IPC. Thereafter, vide order dated 04.09.2013, ld. MM committed this case to the Court of Sessions. Later on, supplementary chargesheet was also filed against co-accused Akbar @ Juber by SI Harendra Kumar on 26.07.2014, along with DD entry No. 28-A and statement of accused.
CHARGE :-
4. Charges were framed against both accused on 09.12.2014 for offence punishable under Section 307/326-A/34, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :-
5. Prosecution examined 16 witnesses in support of its case.
PW Name of Role of witness Proved document/article
No. Witness
PW-1 Sh. Dilshad Complainant/victim, who Statement of PW-1 as Ex.
correctly identified both PW-1/A and OPD
accused and case cards/slips as from
properties, during his Ex.PW-1/B to Ex. PW-
examination in the court. 1/H.
PW-2 Dr. Varun He examined PW-1 in OPD MLC of PW-1 as Ex.PW-
Kulshreshth of Burn & Plastic Surgery in 2/A. GTB hospital and gave opinion regarding nature of injury as grievous due to his facial disfigurement because of acid injuries.
Page 3 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar PW-3 Ct. Om He along with ASI Virender Prakash Singh proceeded to Gali no.1, Old Kardampuri on 26.05.2013, on receiving a telephonic call regarding throwing of acid, where he met one Shadab, who informed them that Akbar and Shanu had thrown acid on his brother. PW-4 SI Pramod He was assigned FIR Kumar No.465/14, u/s. 25 Arms Act, in PS Bhajanpura on 13.04.2014. He was handed over custody of accused Akbar and Shamshad by other police officials at Bhagat Singh Park, Yamuna Vihar, Delhi. On their interrogation, he came to know that they had thrown acid on a shopkeeper at gali no.5, Old Kardampuri. He produced both accused before ld. MM on 14.04. 2014 and also made inquiries from PS Jyoti Nagar and came to know about present FIR i.e. FIR No.193/13, PS Jyoti Nagar. He informed duty officer at PS Jyoti Nagar regarding disclosure and arrest of accused Akbar and gave relevant copies to SI Narender (IO of this case). Page 4 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar PW-5 SI E.S. He inspected the place of Scene of Crime Visit Yadav occurrence on 26.05.2013 Report as Ex.PW-5/A and and prepared Scene of identified burnt T-shirt as Crime Visit Report. He Ex.PW-5/Article-1. identified burnt T-shirt of PW-1 in the court during his examination. PW-6 Sh. Kalyan He brought original judicial Copy of arrest memo of Singh case file bearing FIR Mohd. Akbar in FIR No.465/14, PS Bhajanpura, No.465/14, PS Bhajan under Section 25 Arms Act Pura as Ex.PW-6/A. and proved arrest memo of accused Akbar. PW-7 Mohd. Brother of PW-1, who saw Shahzad Akbar and Shanu fleeing away from the shop of PW- 1 on a white motorcycle. He took PW-1 to GTB hospital and got him admitted there in emergency and informed doctor about throwing of acid upon PW-1 as told by PW-1 to him. He knew both accused prior to incident. PW-8 Mohd. Brother of PW-1 and PW-7, Shadab who made call at 100 Alam number from the mobile phone of PW-7. PW-9 Dr. Ajay He medically examined Kumar PW-1 and prepared his Verma MLC. He referred the patient to burn and plastic surgery department on 26.05.2013. He found burn injury about 45 %. Page 5 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar PW-10 ASI He was on mobile duty on Virender M-33 on 26.05.2013. He Pal along with PW-3 reached the spot on receiving information regarding acid thrown upon a boy. PW-11 Ct. Bhullan He took rukka from GTB Seizure memo of burnt T- Tyagi hospital to PS Jyoti Nagar shirt and acid with cotton and got registered the FIR as Ex.PW-11/A and Ex. on 26.05.2013, in the PW-11/B, respectively. present case and returned Arrest and personal back to the spot and search memos of accused handed over the same with Shahnawaz as Ex.PW- copy of FIR to HC Yashvir. 11/C and Ex.PW-11/D, He was witness to seizure respectively. of burnt T-shirt, acid with the help of cotton, arrest Arrest memo of accused and personal search of Akbar in this case as Ex. Shahnawaz. PW-11/E. He accompanied SI Narender to Karkardooma court on 25.04.2014, where accused Akbar was arrested. He identified both accused in the court, during his examination.
PW-12 ASI Yashvir He was assigned DD No.12 Rukka as Ex.PW-12/A. Singh -A. He obtained MLC of injured and recorded his statement in GTB hospital.
He prepared rukka and handed over the same to PW-11 for registration of FIR. On the direction of SHO, further investigation was marked to SI Prempal.
Page 6 of 22 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar PW-13 HC Mahavir He was photographer in Photographs of scene of Singh Mobile Crime Team, who crime as Ex.PW-13/A-1 to took eight photographs of Ex.PW-13/A-8.
scene of crime from different angles at the instance of IO and proved the same.
PW-14 SI He was assigned DD No.28
Narender -A on 16.04.2014, which
related to arrest of Akbar in
FIR No.465/14 and he went
to PS Bhajanpura and
obtained copy of that FIR
and recorded statement of
IO of FIR No.465/14.
On 23.04.2014, he moved
application for production of
accused Akbar in this case,
before ld. MM. Akbar was
produced on 28.04.2014
and after obtaining
permission from ld. MM, he
interrogated and formally
arrested accused Akbar in
this case.
He identified accused
Akbar in this court, during
his examination.
PW-15 HC He was MHC(M) in PS Copy of relevant entry as
Rajender Jyoti Nagar, who made Ex.PW-15/A. Singh relevant entry in register no.19, regarding deposit of case property in this case by SI Prempal.
Page 7 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar PW-16 SI Prempal 2nd IO in this case, who Singh prepared site plan, called crime team at the spot, seized burnt T-shirt and acid, collected scene of crime report from In-charge Crime Team, recorded statement of witnesses, deposited pullandas to MHC(M), arrested and took personal search of Shahnawaz, obtained final result on the MLC of PW-1, added Section 326-A IPC in this case in view of nature of injuries as grievous and prepared the chargesheet and filed the same before the court. He identified accused Shahnawaz during his examination in the court.
PLEA OF ACCUSED UNDER SECTION 313 CR.P.C. :-
6. In his statement under Section 313 Cr.P.C, accused Shanu @ Shahnawaz denied the allegations of having altercation with Dilshad. He also denied the allegations of alleged incident of throwing acid upon Dilshad. He was ignorant of the medical treatment given to the injured and investigation carried out by the police official so as to take photographs of the spot, lifting of articles, recording the statement of injured and registration of FIR. He took plea that he was called at PS on 26.05.2013, at about 06:00 PM and thereafter, he was falsely booked in this case. He further took plea that Dilshad had identified him and the shirt in the court at the instance of IO. He further took plea that on the date of incident from about 10:00 AM to 03:00-04:00 PM, he was playing Page 8 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar ludo with his three friends in gali no.4 of Kardampuri.
7. Accused Akbar also denied allegations about the alleged incident of throwing acid. He stated that he had given his mobile phone to Dilshad for repair, but Dilshad did not repair it nor did he return the same. Dilshad also refused to pay the price of said mobile phone to him. He further submitted that he was falsely implicated by police officials of PS Bhajanpura in FIR No.465/14, under Arms Act and he did not make any disclosure statement before police. He also stated that he was known to Dilshad and his brothers and they have falsely implicated him in this case due to enmity.
8. Accused Shahnawaz produced defence witness i.e. Smt. Amna, who is his mother. This witness deposed that on 26 th day of a month, 4-5 police officials had come to her house and they made inquiry about Shahnawaz. Shahnawaz was not present. She took Shahnawaz to PS Jyoti Nagar. Police detained Shahnawaz and asked her to go back. Later on, she was told by police that Shahnawaz had poured acid on some one, though she informed police that Shahnawaz was not present at her house. Police demanded money from her to exonerate Shahnawaz, but she could not pay anything due to poverty. Shahnawaz also produced another witness namely Sh. Asif, who came to depose that in the year 2013 on 26 th day of month, at about 10:00 AM, he was playing ludo with accused Shanu and other two persons in gali no.4. They kept playing ludo up to 04:00 PM and thereafter, all of them went to their respective house.
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
9. Ld. counsel for Shahnawaz argued that Shahnawaz was arrested at the spot though, PW-16/SI Prempal Singh deposed that he arrested Shahnawaz from his house. PW-8/Mohd. Shadab Alam declined attesting arrest memo of Page 9 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar Shahnawaz at the spot. He further argued that the glass alleged by prosecution to be used in this case, was not recovered. He further argued that nature of liquid was not ascertained to establish that it was acid, though PW- 16/SI Prempal Singh deposed that liquid was lifted on gauze, but gauze was not burnt, as acid would have burnt it.
10. Ld. counsel for accused Mohd. Akbar argued that except statement of PW-1, there is no other evidence to show that the liquid was acid. He further argued that PW-1/injured, PW-7/Mohd. Shahzad and PW-8/Mohd. Shadab Alam knew Mohd. Akbar and Shahnawaz and were inimical to both. But name of accused was not mentioned, while calling at 100 number or before the doctor who had prepared MLC of PW-1. Thus, name of Shahnawaz and Akbar were taken for the first time in the FIR. He further argued that PW-1/Dilshad did not mention mode of transport of accused persons by which they had come and fled away after committing acid attack upon him. Only PW-7/Mohd. Shahzad mentioned in his statement that motorcycle was used by accused. Ld. counsel further submitted that there is contradiction in statement of PW-1, PW-7 and PW-8 regarding place of meeting of PW-7 and PW-8. Call was made at 100 number, but PCR form was not proved. He further argued that ingredients of Section 307 IPC are not made out. There was no opinion of doctor, which shows that injuries could cause death. He further argued that PW-8 is brother of PW-1, at whose instance site plan was prepared, but PW-8 did not say about it. Site plan shows that acid was thrown outside the shop and no acid mark in the shop was shown in the site plan. He further argued that PW-7 and PW-8 are brothers of PW-1. Despite that, PW-7 did not try to catch accused and he took PW-1 to house and other family members did not come out to help PW-1. PW-1 was having liquid dripping from his face, but neither his shirt Page 10 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar nor seat cover of bike was shown having acid mark. PW-1 was not taken to nearby nursing home, rather, PW-1 was taken to GTB hospital, which shows that incident took place at different time and different place. He further argued that there was delay of two days in registering the FIR in the present case. No other public witness was joined in the investigation and accused were falsely implicated due to previous enmity.
11. PW-1/Sh. Dilshad was the victim in this case. As per testimony of PW-1, around 1- 1 ½ months prior to 26.05.2013 an altercation had taken place between him and accused persons over the issue of his refusal to sell the mobile phones of the accused persons. On 26.05.2013, at about 11.30 -11.45 am PW-1 was present in his mobile repair shop at C-3, Gali No.5, New Kardampuri, Delhi. Both accused Shanu and Akbar came to his shop. Shanu was having a glass filled with acid. Shanu handed over the glass to Akbar and asked Akbar to throw the acid on PW-1 and to kill him. Akbar threw acid on the face of PW-1. Acid fell on the face and upper part of body of PW-1. PW-1 started crying out of burn feeling. His brother Shadab and Shahzad (PW-8 and PW-7 respectively) came to his shop. Both accused persons had fled away after throwing acid on PW-1. His brothers brought motorcycle from his house. His house was situated at 8-10 houses from his shop. Shahzad (PW-
7) took PW-1 to GTB hospital on motorcycle. In the hospital Shahzad made a call at 100 number and informed police. PW-1 was admitted in the hospital for around 3-4 days. Police met PW-1 in the hospital and recorded his statement on the same day. The said statement was proved as Ex.PW1/A. After discharge from hospital, police called PW-1 at police station and obtained his signatures on certain documents, though PW-1 was not explained the contents of those documents. After around 2 months, PW-1 got himself Page 11 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar photographed showing his burn injuries, which were handed over to the police. He also received treatment from GTB hospital. After 2-3 months, he visited GTB hospital along with IO and met doctor in the hospital. PW-1 had received treatment vide several medical documents i.e. Ex.PW1/B to Ex.PW1/H. The photographs were Marked as PW1/A to PW1/D. PW-1 was wearing white colour T-shirt, having some print on its front side, at the time of incident. PW-1 identified that T-shirt produced by police constable on behalf of MHC(M), which was proved as PW5/Article 1. This was found to be a white colour burnt T-shirt. Front part of T-shirt was totally missing.
12. In his cross-examination on behalf of accused Akbar, PW-1 denied the suggestion that Akbar had given a mobile phone for repair or that he did not repair that mobile phone nor did he pay the price of mobile phone to accused Akbar. PW-1 further denied the suggestion that he falsely alleged the dispute on account of refusal of purchase of mobile phone of Akbar. He further deposed that none of the neighbours were present at the time of throwing of acid and the adjacent shop was closed at that time. He further deposed that despite hue and cry raised by him, none of public persons assembled there because no one was available at that time. T-shirt worn by him was burnt and had fallen down at his shop. He denied the suggestion that he created self inflicted acid injuries so as to seek compensation from the SDM and to extort amount from Akbar by falsely implicating him.
13. During his cross-examination on behalf of accused Shahnawaz, PW-1 deposed that after acid being thrown on him, he had come out of his shop. He did not remember that through which hand accused had thrown acid on him. He denied the suggestion that he falsely implicated Shahnawaz in conspiracy with his brother, to extort money from him.
Page 12 of 22 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar
14. Another important witness of this incident is PW-7/Md. Shahzad. Md. Shahzad is brother of victim/PW-1. According to testimony of PW-7, on 26.05.2013 at about 11.45 a.m., he was coming to his shop from his house situated at property no. B-66, Gali No. 5, New Kardampuri, Delhi. He was about to enter his shop, when he heard shouting of his brother Dilshad (PW-
1). PW-1 was calling him and seeking his help from his shop. His shop was situated after around 4-5 shops from the shop of PW-7. PW-7 rushed to the shop of PW-1 and before he could reach there, he saw that accused Akbar and Shahnawaz came out of the shop of PW-1 and fled away on a white motorcycle. PW-7 could not note down the number, make and model of that motorcycle. Both accused persons had fled away towards Gali no. 2. PW-7 saw that Dilshad (PW-1) was having burnt injuries on his face, chest, shoulder etc. PW-7 took PW-1 on foot to his house. From his house, he took PW-1 on his motorcycle to GTB Hospital and got him admitted in emergency. PW-7 informed doctor about throwing of acid upon PW-1 as PW-1 had told him that Akbar had thrown acid upon him in the presence of accused Shanu. After around 15-20 minutes, police also reached hospital. Police recorded statement of Dilshad and PW-7.
15. During cross-examination, PW-7 gave description of other shops and houses around the shop of PW-1. He deposed that his shop was situated at around 15-20 steps from the shop of PW-1, having one shop between their shops. He further deposed that no public person was present there. He denied the suggestion that he did not see both accused persons fleeing away on motorcycle.
16. Another important witness of the case is PW-8/Md. Shadab Alam. PW-8 is also brother of victim/PW-1. According to his testimony, on 26.05.2013 at Page 13 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar about 11.50 a.m., he was present inside his house. His brother Shahzad (PW-
7) came rushing to their home. Shahzad asked PW-8 to come out of the house and PW-8 saw that PW-1 was also rushing towards home from the side of his shop. PW-1 was crying that Akbar and Shahnawaj had thrown acid on him. Some sort of liquid was present on the face and chest of Dilshad. Shahzad gave his mobile phone to PW-8 to make call at 100 number. Shahzad took Dilshad on his motorcycle to hospital. PW-8 went to the shop of Dilshad and made call at 100 number from that place. Initially one police came on motorcycle and PW-8 told him about acid thrown on his brother. Thereafter, PCR and other police officials also reached there and PW-8 informed those police officials also about this incident. Police left that place after making inquiry from PW-8. PW-8 also left for GTB Hospital and found his brother Dilshad being treated in the hospital. On same evening, PW-8 was called at police station and thereafter, he was taken to house of Shahnawaj. Shahnawaj was present at his house and he was apprehended by police. Police took Shahnawaz to police station and PW-8 was discharged.
17. PW-8 was cross-examined by Ld. APP on certain points and PW-8 deposed that he did not remember if police had obtained his signatures on any document at any point of time. Though, he identified his signature appearing at point X on the arrest and personal search memo as well as disclosure statement of accused Shahnawaj. He could not recollect time when he signed these documents. He could remember only about one document, which was prepared. He was suggested that he had signed arrest memo and other documents outside the house of Shahnawaj and he admitted the suggestion stating that on the basis of suggestions he could recollect the same. He also admitted that on 26.05.2013, police had prepared site plan of shop of Dilshad Page 14 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar and he had signed the same. He identified his signature on the site plan, which was proved as Ex.PW-8/A.
18. During his cross-examination by accused persons, PW-8 denied the suggestion that Dilshad had not taken names of Akbar and Shahnawaj as the persons who had thrown acid on him. He admitted the suggestion that the documents were signed at police station. He further deposed that Dilshad met him in injured condition outside his home. At that time 15 persons were residing at his house. He further deposed that he used to sit in the shop of his brother Shahzad and at the time of this incident his father was sitting in that shop. All male members of his family had gone for their work and therefore, they were not present in the house at that time. At that time Dilshad was wearing jeans and T-shirt of white colour. He had not seen any of the accused persons at that time. He had not entered house of Shahnawaj at the time of his arrest as police had brought him out from his house. He had signed one document outside his house and some other documents were signed in police station.
19. Among the police officials, who had visited the place of incident immediately after the incident, were PW-3/Ct. Om Prakash, PW-10/ASI Virender Pal, PW- 11/Ct. Bhullan Tyagi and PW-12/ASI Yashvir Singh. PW-3 and PW-10 were the first police officials, who had reached the place of incident. Both of them were on patrolling duty and PW-10 was given information of this incident by duty officer on telephone. According to both these witnesses PW-8/Shadab met them at the place of incident. PW-8 informed them that his brother was taken to GTB hospital by another brother. Both these witnesses deposed that PW-8 had told them the name of assailants as Akbar and Shahnawaz. In the meantime, PW-11/Ct. Bhullan and PW-12/ASI Yashvir Singh also reached Page 15 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar there and thereafter, PW-3 and PW-10 left that place. Both these witnesses denied the suggestion of defence that they were not informed the name of Akbar and Shahnawaz as assailants by Shadab.
20. According to PW-12/ASI Yashvir Singh, he along with PW-11 reached the place of incident i.e. a shop in gali no.5 and they came to know that injured was taken to GTB hospital by his brother. Both of them reached GTB hospital and PW-12 obtained MLC of injured Dilshad (PW-1). Dilshad was present in the hospital and his statement was recorded by PW-12 i.e. Ex.PW-1/A. PW- 12 made his endorsement on his statement and prepared Rukka, which was taken to police station by PW-11 for registration of FIR. PW-12 returned to place of incident and joined further investigation with next IO i.e. ASI Prem Pal (PW-16). According to PW-12, when he reached the place of incident around 15-20 public persons were present on the spot, but no family member or relative of injured met him on the spot. On the other hand, according to PW- 11, when he along with PW-12 reached the place of incident for the first time, they did not find any police official there. He was not sure if any family member of injured was present there. Public persons had informed them that injured was taken to GTB hospital.
21. If I analyze the testimony of aforesaid four police officials in totality along with testimony of PW-8, then I find that the factum of Shadab (PW-8) being present at the place of incident i.e. shop of PW-1 and his meeting with some police officials i.e. PW-3 and PW-10 stand corroborated. There is some discrepancy in respect of meeting between PW-3 and PW-10 on one hand and PW-11 and PW-12 on other hand, at the place of incident. However, this discrepancy is not so material so as to shake the case of prosecution. Rather, I do not find any purpose for PW-3 and PW-10 to go on mentioning the name Page 16 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar of assailants as disclosed to them by PW-8, without receiving such information from PW-8. Their such statement regarding conduct of PW-8 is very much relevant under Section 8 of Evidence Act, though mentioning of such name of assailants by PW-8 before PW-3 and PW-10 may not be a direct piece of evidence against the accused persons. Similarly, testimony of PW-8 that PW-1 was crying taking name of Akbar and Shahnawaz as the persons, who had thrown acid on him, is very relevant evidence so as to show the conduct of PW-1 as contemplated under Section 8 of the Evidence Act. PW-8 had deposed that he had also left for GTB hospital and admittedly his statement was not recorded by any police official, who met him at the spot. The situation connotes to the case projected by prosecution that PW-12 could not find any person on the spot so as to give account of the incident.
22. It is also to be borne in mind that since the DD entry in question i.e. DD No.12-A was assigned to PW-12, so PW-12 would have been technical in order to make his recordings on the basis of concrete statement given by a witness before him, rather than acting on the basis of any informal information given to him by any person.
23. Another discrepancy as pointed out by ld. defence counsel relates to the place of call made at 100 number and the person, who had made such call at 100 number. According to PW-1, when he was taken to GTB hospital by his brother PW-7, then PW-7 made call at 100 number. However, PW-7 did not depose about making any call at 100 number. On the other hand, PW-8 deposed that PW-7 had given his mobile phone to him in order to make a call at 100 number and PW-7 had left with PW-1 for hospital on his motorcycle. Thereafter, PW-8 had made call at 100 number from the shop of PW-1. The statement given by PW-8 is consistent with the testimony of PW-3 and PW-
Page 17 of 22 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar 10, who found him present at the shop of PW-1 during their visit to that place, after being informed about this incident. DD No.12-A was recorded at 12:15 PM, wherein it was informed that two boys had thrown acid in gali no.5, Kardampuri. In the same DD, it was also recorded that PW-12 was being assigned that DD on telephone and at the same time M-33 was also given information through telephone. This M-33 referred to PW-10, who was on mobile duty on M-33 along with PW-3. PW-12 took more time than PW-10 to reach the place of incident and thus, PW-8 had met PW-10 and thereafter, when PW-12 reached the spot, PW-3 and PW-10 left the spot. Therefore, some discrepancy as appearing in the statement of PW-1 regarding call made at 100 number by PW-7 does not create any serious doubt about this case, because such statement might have been given by PW-1 under some misconception.
24. Ld. defence counsel also referred to testimony of PW-7 and PW-8 to say that there is contradiction regarding the place of their meeting. PW-7 had deposed that he took PW-1 to his house and took him to GTB hospital on his motorcycle from his house. It is well apparent from testimony of PW-7 that he was not making statement in very detailed manner. Therefore, PW-7 did not even mention about PW-8 coming into the scene. However, PW-1 deposed that his brothers PW-7 and PW-8 had come to his shop and they had got motorcycle from the house, on which PW-7 took him to GTB hospital. On the other hand, PW-8 deposed that PW-7 had come to the house and asked him to come out the house. After coming out of the house, PW-8 saw that PW-1 was also rushing towards home from the side of his shop and PW-1 was having some liquid over his face and chest, who was also crying taking name of accused persons. The distance between the shop of PW-1 and house of Page 18 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar PW-1 was not much and therefore, the consistent picture emerges is that after the incident of throwing of acid inside the shop of PW-1, PW-1 started raising hue and cry. PW-7 was present nearby while coming to his shop, who rushed towards the shop of PW-1. He could also see that both accused persons Akbar and Shahnawaz were coming out the shop of PW-1 and were fleeing away on their motorcycle. Thereafter, PW-7 took PW-1 to his house. Apparently PW-1 was able to walk and therefore, he might be following PW-7, while PW-7 would have rushed to the house at faster speed to bring motorcycle and to take PW-1 to the hospital. Therefore, once again I could not find any material contradiction appearing in the prosecution evidence, which could raise a serious doubt about the whole incident.
25. Defence has taken another plea that PW-1 had created self inflicted injuries meaning thereby PW-1 himself poured acid upon himself. I do not find this plea of defence to be very sound and probable because until unless there be some strong reasons to risk own life, a person would not pour acid upon his face in such manner so as to make his looks ugly and endanger his life. The given reason on the part of accused Akbar for self inflicting injury was that PW-1 wanted to claim compensation from SDM and he wanted to avoid making payment of mobile phone to Akbar and for such reasons by inflicting such injuries upon himself, he falsely implicated Akbar in this case. On the other hand, PW-1 has also given a motive for both accused persons to throw acid upon him by stating that both these accused persons were annoyed with him because he had refused to purchase their mobile phone. From the contentions of both parties, one thing is well established on the record i.e. existence of a dispute between PW-1 and accused Akbar. Accused Shahnawaz could not give any motive for PW-1 to implicate him in this case, Page 19 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar except that PW-1 wanted to extort money from him.
26. I have already ruled out the possibility of PW-1 pouring acid upon himself. During examination of PW-2 i.e. doctor who had opined that PW-1 had sustained the grievous injury due to his facial disfigurement, the court had recorded that PW-1 was having mark of acid injuries on his head as well as other parts of his body. On the subsequent date, PW-1 had also pointed out to four photographs, which were not disputed by the defence and these photographs show very clearly about the disfigurement of PW-1, serious injuries of burn on his left side of neck as well as left side of his chest. Such injuries could not be self inflicted merely to claim some compensation from SDM or to avoid making payment to accused Akbar. Rather, anguish out of existing dispute could be a reason for both accused persons to teach a lesson to PW-1 by throwing acid upon him. It is also worth consideration that the name of both accused persons were mentioned by PW-1 at the earliest possible time before PW-7 and PW-8 as well as before PW-3 and IO by PW-
8. Thus, there was no scope for making any artificial allegation to falsely implicate both the accused persons. In that situation, the testimony of PW-7 that he could see the accused persons coming out of the shop of PW-1 and fleeing away on their motorcycle, supports the case of prosecution regarding the involvement of both accused persons in throwing acid upon PW-1.
27. The act of throwing acid could obviously be done by one person, which was so done by Akbar. However, the role of Shahnawaz was no lesser in facilitating this act by Akbar. Shahnawaz had handed over the glass of acid to Akbar, so as to throw the same upon PW-1 and thus, I do find that the act of both accused persons were performed in pursuance of common intention to throw acid upon PW-1.
Page 20 of 22 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar
28. Next question is that whether both accused persons are guilty for offence punishable under Section 307 read with Section 34 IPC or for offence punishable under Section 326-A read with Section 34 IPC? As per opinion given by doctor, the nature of injury sustained by PW-1 was grievous. However, doctor did not opine that but for any intervening factor such injury could have caused death of PW-1 as well. In absence of any such concrete opinion, it cannot be assumed that the act of both accused persons could have caused death of PW-1. When the effect of act done by both accused persons could not have resulted into death of PW-1, then in my opinion Section 307 IPC cannot be invoked against them. However, there is unrebutted opinion given by PW-2 that PW-1 had sustained grievous injury because of acid burn injuries. Defence had taken a plea that IO did not obtain a concrete opinion regarding the nature of liquid lifted from the place of incident and hence, it cannot be said to be with all certainty, a case of acid burn. However, I find that PW-2 was not cross-examined on this point by any of the accused persons. IO did not seek additional opinion regarding nature of liquid taken on gauze from the place of incident because he was told by the injured and the other witness that acid was thrown on PW-1. The medical documents of PW-1 mentioned it to be a case of acid burn injury. Defence even did not dispute such medical documents and the MLC of PW-1. Therefore, omission on the part of IO to seek additional opinion regarding nature of liquid lifted on a gauze from the place of incident, does not become fatal for the prosecution case. From the bare perusal of mark of burn injuries appearing on the face and body of PW-1, one can opine that it was case of acid burn injury. Hence, I find both accused persons to be guilty for offence punishable under Section 326-A read with Section 34 IPC.
Page 21 of 22 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi FIR No.193/13 PS : Jyoti Nagar
29. In view of my foregoing discussions and findings, both accused persons are convicted for offence punishable under Section 326-A read with Section 34 IPC.
Announced in the open court (PULASTYA PRAMACHALA) today on 16.07.2016 Additional Sessions Judge (Shahdara), (This judgment contains 22 pages) Karkardooma Courts, Delhi Page 22 of 22 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi