Delhi District Court
Sc No. 2526/16, Fir No. 89/16, Ps ... vs . Ganesh Das 1 Of 15 on 5 January, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 2526 of 2016
CNR No. DLSE01-002252-2016
STATE
Vs.
Ganesh Das
S/o Sh. Jagdish Das,
R/o Village Lakibar, PO Souri,
PS Belda, District Paschim Medinipur,
West Bengal.
FIR No. 89/2016
PS: Govindpuri
U/s: 326A IPC
Instituted on : 21.04.2016
Committed on : 06.05.2016
Reserved on : Not reserved
Decided on : 05.01.2023
JUDGMENT
1. The accused in the instant case has been sent to face trial with the allegations that on 29.01.2016 at about 11.20 am at Street No.14, R D Marg, Govindpuri within jurisdiction of PS Govindpuri, he threw acid upon his wife i.e. complainant Rinku Das and caused her grievous injuries by disfiguring her face, left ear and both hands.
2. Brief Facts: On 29.01.2016, on receipt of DD No.22A at PS SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 1 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:43:25 +0530 Govindpuri regarding throwing of acid on a lady by her husband, ASI Birender Singh and Ct. Munesh reached at the spot. In the meantime, another DD No.25A was received from Batra Hospital regarding MLC of injured Rinku Das and thereafter, they reached Batra hospital and found the injured under treatment vide MLC no.11587 having burn injuries caused by acid attack.
2A. The victim gave her complaint Ex.PW1/A alleging that she got married with accused Ganesh Das and was having quarrel with him for last two months, that on 29.01.2016 at about 11.20 am she was going to her workplace and when she reached at the corner of Street No.4, suddenly Ganesh Das came there having glass containing some liquid and abused her and poured the said liquid on her, that she felt burning and started crying and in the meantime, accused Ganesh Das fled away from the spot, that her head, part of left ear and both hands got burnt. She further deposed that thereafter she informed police at 100 number and also informed her mother who reached at the spot and took her to Batra Hospital in a TSR.
2B. During investigation, police seized the clothes worn by victim at the time of incident and sent the same for examination. Statement of witnesses including mother of victim and one Tea vendor namely Dilshad (witness to the incident) was recorded during course of investigation. The accused was arrested on 14.02.2016.
3. The investigation culminated in the filing of a chargesheet under section 173 CrPC against accused.
SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 2 of 15
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.05
11:43:37 +0530
CHARGE
4. On completion of necessary formalities, matter was committed to the Court of Sessions. To a charge under section 326A IPC framed on 02.06.2016, the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
5. In support of its allegations, prosecution produced 09 witnesses. A summary of the witnesses produced and their connection with the incident is as follows :
Witness Witness Name Purpose
No.
PW1 Rinku Das Injured/eyewitness of the incident
PW2 Smt Deepali Das Mother of injured who took the
injured to hospital
PW3 Ct Vishal Witness to arrest of accused from
West Bengal
PW4 Dilshad The other Eye-witness
PW5 HC Amit Witness to arrest of accused from
West Bengal
PW6 Ct Munesh Got the FIR registered
PW7 ASI Yadvir Duty Officer
PW8 SI Birender First Investigating Officer
PW9 SI Manjeet IO of the case, who conducted the
investigation in the instant case
STATEMENT OF ACCUSED U/S 313 CrPC:
6. After the completion of the prosecution evidence, statement of the accused U/s 313 CrPC was recorded wherein all the incriminating SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 3 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:43:46 +0530 evidence was put to accused. Accused took the plea of false implication and stated that only a small scuffle took place between him and his wife in which she fell down.
7. Accused did not lead any defence evidence and accordingly matter was fixed for final arguments.
ARGUMENTS OF Ld. ADDITIONAL PUBLIC PROSECUTOR FOR THE STATE:
8. Ld. Addl. PP for the state argued that the testimony of injured / eyewitness PW1 is consistent, trustworthy and of sterling quality as nothing came out in her cross-examination to discredit her version and to impeach her credibility. He further argued that there arises no reason for this court to disbelieve testimony of PW1 which has been duly corroborated by other prosecution witnesses. It was lastly his submission that prosecution has successfully proved its case beyond all reasonable doubts.
ARGUMENTS OF DEFENCE:
9. Ld. Legal Aid Counsel for accused vehemently argued that the PW1's testimony is not of sterling quality. He further argued that there are material contradictions in the testimonies of witnesses and accused could not be convicted on the strength of their doubtful testimonies. The defence counsels accordingly prayed for acquittal of accused.
10. I have heard rival contentions and perused the record. For appreciating the rival contentions, it would be apt to analyze the evidence SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 4 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:43:57 +0530 brought on record in detail to adjudicate, if the prosecution has been able to prove its case beyond all reasonable doubts or whether accused deserves to be acquitted in the present case.
EVIDENCE ON RECORD:
11. The testimonies of the relevant prosecution witnesses are being discussed hereunder. Brief of the remaining testimonies have already been given in para five (5) of the judgment.
12. PW1 Ms Rinku Das is the star witness of the prosecution. She deposed that on 29.01.2016 at about 11.20 am, when she was going to her workplace and reached at the corner of street no.14, suddenly accused Ganesh came there having a glass containing some liquid, abused her and threw said liquid on her face; that she started screaming and accused ran away from the spot; that her face and hands got burnt due to said liquid; that she informed police on 100 number and also informed her mother who reached at the spot and took her to Batra Hospital in TSR; that police came to Batra hospital and recorded her statement Ex.PW1/A; that she also handed over her wearing clothes i.e. black color jacket and pink color T-shirt to the police who seized the same vide seizure memo Ex.PW1/B. 12A. During her cross examination by Ld defence counsel, she deposed that the quarrel started taking place between them 2-3 years after their marriage when she came to know that accused was having extra marital affair. She denied the suggestion that on the date of incident, she had called the accused at the corner of the street. She further denied the SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 5 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:44:06 +0530 suggestion that she herself had brought liquid in the glass and poured some drops of same over her to falsely implicate the accused. She denied the suggestion that she wanted to get separated from accused and therefore, falsely implicated him.
13. PW2 Smt Deepali Das is the mother of victim/PW1 who deposed that on 29.01.2016 at about 11.15 am her daughter went for her work and after 10 minutes, she (PW1) told her on telephone that accused threw acid on her face at street no.14; that she reached there and took her daughter to Batra Hospital in injured condition.
14. PW4 Dilshad (Tea Vendor) deposed that about one year back at about 11.00 am, when he was present at his tea shop at Govindpuri, one lady came and fell down; that he lifted her and kept her on the bench; that there was sign of chemical on the hand, face and head of said lady; that some public persons told him to apply some milk on the lady; that he brought milk and put on her; that mobile phone of said lady was lying on the ground which he picked and handed over to her; that said lady made a call to her family members; that mother of said lady took her hospital.
14A. PW4 was cross examined by Ld Addl PP for State with permission of the court. On being cross examined, the witness denied the suggestion that accused threw acid on the body of victim in his presence and fled away from the spot.
15. PW8 SI Bijender Singh is the first investigating officer who deposed that on 29.01.2016 at about 11.33 am, on receipt of DD No.22A, SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 6 of 15 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:44:17 +0530 he along with Ct Rajesh and Ct Munesh reached at Street No.14, Govindpuri where he came to know that injured has already been taken to hospital; that in the meantime, he received DD No.25A regarding admission of injured in the hospital; that he went to Batra Hospital where he found injured and collected her MLC; that injured produced a written complaint and he made endorsement on the same; that he prepared rukka and sent Ct Munesh to PS for registration of FIR; that after registration of FIR, Ct Munesh and SI Manjeet came at the spot and further investigation was marked to SI Manjeet; that SI Manjeet seized the clothes of victim i.e. black color jacket and pink color T-shirt vide seizure memo Ex.PW8/B.
16. PW9 SI Manjeet is the second IO who deposed that on 29.01.2016, further investigation of the present case was marked to him; that he along with ASI Bijender reached at Batra Hospital where injured was found under treatment who handed her wearing clothes and same were seized vide memo Ex.PW1/B after converting the same into pullanda; that they searched for accused but he could not be traced; that on 14.02.2016, he along with HC Amit and Ct Vishal went to village of accused at Thakur Chowk, PS Behlda, Paschim Mednipur, West Bengal alongwith local police official Ct Hardans; that accused was found at the aforesaid address which belonged to his sister; that accused was arrested vide memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B.
17. Record transpires that during course of trial, accused admitted the FSL report dated 28.04.2016 Ex.A1, MLC of victim Ex.A2, two DD entries dated 14.02.2016 Ex.A3 (colly). Therefore, on the anvil of section SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 7 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:44:26 +0530 294 CrPC, the said documents could be read in evidence without its formal proof.
18. Record transpires that post conclusion of final arguments, matter was fixed for orders, however vide order dated 09.11.2022, it was observed by this court that certain clarifications are required regarding the injuries which were reported as 'Grievous' and accordingly the concerned doctors were summoned from Holy Family Hospital and examined.
19. CW1 Dr. Kirti Singh proved MLC Ex. A2 of the victim and inter alia deposed that she had opined the injuries as 'Grievous' as the victim had suffered burn injuries due to acid attack on her face, scalp, wrist and hands. During her cross examination, she deposed that she does not know if the victim had suffered permanent disfiguration of her face.
20. CW2 Dr. Vipul Sood deposed that victim Rinku Das was admitted in the hospital with history of acid burn over face, scalp area and bilateral hand and was discharged vide discharge summary Ex. CW1/DX1.
21. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 8 of 15
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.01.05
11:44:37 +0530
22. In view of the submissions made, I proceed to analyze the evidence led on behalf of the prosecution.
23. PW1 is the star witness of the prosecution and the injured in the instant case. Perusal of her testimony reveals that she has gone whole hog with the prosecution version. In her testimony, she has categorically deposed that on 29.01.2016 at about 11.20 am, when she was going to her workplace at Lajpat Nagar and reached at the corner of Street No.14, accused Ganesh Das came there having one glass containing some liquid, abused her and threw the liquid on her resulting in burn injuries over her face and hands. It is evident that the witness has painstakingly narrated the entire incident in a consistent manner. PW1 faced grueling cross- examination but defence could not elucidate anything to discredit her. Her testimony is absolutely trustworthy, unblemished and of sterling quality. PW-1 withstood rigors of cross-examination without being shaken and therefore her testimony can be safely relied upon.
24. The law regarding testimony of victim of the offence is well settled. For appreciating the evidence of the victim, the Court has to bear in mind that the presence of such witness at the time and place of the occurrence cannot be doubted. While appreciating her evidence, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. Being the victim/eye witness of the crime, she would be most keen to ensure that the real culprit does not go scot free and there is no reason that he would frame any innocent person in such a serious offence which she had alleged completely knowing its implications without any previous enmity with SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 9 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:44:46 +0530 him. Reliance is placed upon judgment of Hon'ble Delhi High Court in Chuni Lal vs. State of Delhi, Crl. A. No. 262/2003, decided on 08.08.2013, wherein it was held as under:-
"11. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustain injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 10 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:44:55 +0530 case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
12. To the similar effect is the judgment reported in Mano Dutt and Anr. Vs. State of UP, (2012) 2 SCC (Cri) 226."
25. The testimony of victim has been duly corroborated by her mother i.e. PW2 Smt. Deepali Das who was informed about the incident by the former and who shifted her to hospital immediately after the incident. During course of arguments, it was vehemently argued by Ld LAC that the sole independent witness examined by State i.e. PW4 Dilshad did not support the prosecution version in the witness box and therefore, the testimony of PW1 cannot be relied upon in the absence of corroboration by any independent witness. I cannot but disagree with Ld SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 11 of 15 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:45:04 +0530 LAC as it is a settled law that witness are to be weighed and not counted and a finding of guilt can be return on the sole testimony of a victim. Even otherwise, though PW4 Dilshad denied the suggestion of Ld Addl PP for State that he had seen the accused throwing acid upon the victim, however the version of victim has got corroborated by PW4 to the extent that he had seen the victim in injured condition after the incident as she fell down in his presence and the witness had noted some chemical on her body.
26. Further, the ocular testimony of victim has been duly corroborated by the medical and scientific evidence on record. The MLC Ex.A2 of the victim conducted on the same day at about 11.50 AM i.e. immediately after the incident, not only records alleged history of ' acid attack by husband at Govindpuri at 11.00 AM' but also reveals that the victim had suffered Grade I burn on left side of face, scalp, wrist and hands.
27. Furthermore, as per FSL report Ex.A1, the clothes of the victim (one black color woolen jacket and one pink color T-shirt) were found containing 'sulphuric acid'. The said clothes were the same clothes which were being worn by victim on the date of incident and which were seized vide seizure memo Ex.PW1/B by the IO SI Manjeet on the date of incident itself.
28. Next, the motive to commit crime has also got proved in the instant case as PW1 in her testimony deposed that the parties were having matrimonial dispute after 2-3 years of their marriage as accused i.e. her husband was having extra marital affairs.
SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 12 of 15
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.01.05 11:45:13
+0530
29. Though, accused put a defence that he was falsely implicated by victim who was his wife as she wanted to get separated from former, however the suggestion on that count was not only vehemently denied by the victim but has also not been proved by defence on the scale of preponderance of probability. Apart from a bare suggestion in this regard, defence did not bring forth any material in support of same. Even otherwise, it looks highly improbable that for merely for getting separated from her husband, any woman would take such a great risk of subjecting herself to self inflicted burn injuries that too by an acid. The defence as put forth by accused in my view cannot pass the muster in the factual matrix of present case.
30. Ld. LAC has failed to point out any material contradiction in the testimony of eye-witness so as to render the same unreliable. No material contradiction exists in the testimony of eye-witness to render his version unbelievable. In the present case, the testimony of eye-witness is cogent and convincing against the accused regarding the alleged incident.
31. To summarize, in view of cogent testimony of victim having been duly corroborated by other prosecution witnesses more particularly PW2 and PW4 and having considered the medical and scientific evidence available on record, it has proved on record that accused Ganesh Das had thrown acid upon the victim Rinku Das causing her injuries.
32. During course of arguments, it was vehemently argued by Ld. LAC that though in the MLC Ex. A2, the injury has been reported as 'Grievous', however in the said MLC, the reasons for reporting the injures SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 13 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:45:22 +0530 as 'Grievous' have not been mentioned. It was urged that there is nothing in the MLC or the discharge summary of victim to suggest that she had suffered permanent disfiguration of the head/ face or any of the injuries as mentioned u/s 320 IPC so as to bring the said injuries within ambit of 'Grievous' injuries. It was next contended that the victim had only suffered Grade-I burns in the range of 5-10% over her wrist, scalp and hands and therefore the act of accused would not come within ambit of section 326A IPC which requires injuries to be grievous in nature.
33. I cannot but disagree with Ld. LAC on this count. Though the accused in the instant case has been charged for offence u/s 326A IPC for voluntarily causing grievous hurt by use of acid, however in my view, even if injuries are simple, a case u/s 326A IPC is made out as it has been proved on record that the victim had received 'burn injuries' due to acid attack by the accused and 'burn injuries' is one of the eight injuries mentioned in section 326A IPC so as to attract said penal provisions. I am fortified in my view by the judgment of Hon'ble Apex Court in Maqbool vs. The State of Uttar Pradesh, Crl. Appeal No. 1143 of 2018, wherein it was held as under:-
"Thus, merely because the title to Section 326A of IPC speaks about grievous hurt by use of acid, it is not a requirement under the Section that the injuries caused should be invariably grievous. Even if the seven injuries are simple, Section 326A, and under Section 326B the mere act of throwing or attempt, as indicated in the Section, would attract the offence"
34. To summarize, prosecution has been able to prove its case beyond all reasonable doubts against accused Ganesh Das. Therefore, accused is held guilty of committing offence u/s 326A IPC and stands SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 14 of 15 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:45:32 +0530 convicted accordingly. Let parties be heard on the point of sentence.
35. Copy of the judgment be provided to the convict as free of Digitally signed by cost. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.01.05 11:45:40 +0530 Announced in the open (ANUJ AGRAWAL) Court on 5th January, 2023 Additional Sessions Judge-05, South East, Saket Courts, New Delhi SC No. 2526/16, FIR No. 89/16, PS Govindpuri State vs. Ganesh Das 15 of 15