Delhi District Court
State vs Manju on 20 May, 2023
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE -04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET01-009032-2017
SC No. 491/2017
FIR No. 722/2015
U/s 326-A IPC
P.S. Gandhi Nagar
In the matter of :
State
versus
Manju,
W/o Sh. Kamal,
R/o H.No. 2815/54, Gali No. 4,
Dharampura Nale Ke Pass,
Gandhi Nagar, Delhi.
Also R/o 546, Shiv Colony,
Maina Mojpur, Bulandshahar, UP.
Date of Institution : 08.08.2017
Date of reserving Judgment : 10.05.2023
Date of pronouncement : 20.05.2023
Appearance
For the State : Shri Ajit Kumar Srivastava
Additional Public
Prosecutor.
For accused : Ms. Ifat Sultana, advocate.
JUDGMENT
1) Briefly stated the facts of the present case are that on 18.11.2015 at 10.12 hours an information was received at PS Gandhi Nagar regarding the PCR call that H.No. 28/1554, Gali No. 4, Dharampura, Gandhi Nagar, acid was thrown upon the Sessions Case No. 491/2017 Page 1/27 ASJ-04/East/KKD/Delhi caller by the sister-in-law (Nand) of the caller. The information was recorded vide DD No. 12A Ex. PW2/A, which was assigned to SI Amit Dutt. Upon enquiry and verification of place of incident, IO/SI Amit Dutt alongwith Const. Nemi Chand reached place of incident i.e. H.No. 2815/54, Gali No. 6, Dharampura, Gandhi Nagar, Delhi, and came to know that the injured has already been shifted to SDN Hospital. IO alongwith PW6 Const. Nemi Chand reached SDN Hospital and obtained MLC of Mamta and her son Krishna. The injured persons were not found there and they had been referred to GTB Hospital for further treatment. IO alongwith Const. Nemi Chand reached GTB Hospital and came to know that the injured had left for their house. IO received information that the injured alongwith her minor child had reached the police station. IO went to the police station and made inquiries from Mamta and recorded her statement Ex. PW3/A.
2) In her statement recorded by the IO, injured Mamata stated that she used to reside alongwith her family at H.No. 2815/54, Gali No. 4, Dharampura, Gandhi Nagar, Delhi, and she was a housewife. Her brother-in-law (Jeth) Ashok, who was unmarried, her sister-in-law (Nand) Manju and her husband (Nandoi) Kamal also used to reside there alongwith their children. On that morning at about 09.30 am the complainant was breast feeding her son, who was about one year old, in a room on the third floor of the house. At that time suddenly her sister-in-law Manju came to her room and told the complainant to give her jewellery etc. to her i.e. accused Manju. The complainant refused at which Manju threatened her that she will Sessions Case No. 491/2017 Page 2/27 ASJ-04/East/KKD/Delhi put fire on her and burn her. Thereafter accused Manju went away. Then Manju got a bottle of acid from downstairs and threw it on the complainant due to which her face, neck, arms got badly injured and her son Krishna sustained injuries on his face and neck. Thereafter Manju went away from there. Meanwhile husband of the complainant came back after giving clothes for ironing and then the complainant called the police at 100 number. Thereafter they were taken to General hospital from where they were taken to GTB Hospital. The complaint of injured Mamta is Ex. PW3/A.
3) On the basis of the above statement given by the complainant/victim Mamta Ex. PW3/A, FIR bearing no. 722/2015 was registered u/s 326A IPC at PS Gandhi Nagar vide Ex. PW1/A on 18.11.2015.
4) IO conducted the necessary investigation and prepared the site plan at the instance of complainant vide Ex. PW3/DA. IO took photographs of the scene of crime and the injuries of the injured persons on his mobile phone. Six photographs are Ex. PW3/C (colly). The complainant handed over her clothes i.e. one salwar-suit and chunni Ex. P-1 (colly), which were seized by the IO vide seizure memo Ex. PW3/B. IO also recorded statement of husband of the complainant. Despite efforts accused Manju could not be traced at that time. IO deposited the case property in the malkhana. Subsequently, on 20.11.2015 accused Manju was arrested by Const. Varsha vide arrest memo Ex. PW3/D and her personal search was conducted vide memo Ex. PW8/A. Disclosure statement of the accused Sessions Case No. 491/2017 Page 3/27 ASJ-04/East/KKD/Delhi Manju Ex. PW8/B was recorded. IO alongwith Const. Deepak, Const. Varsha and accused Manju reached at H.No. 2815/54, Gali No. 4, Dharampura, Gandhi Nagar, Delhi, to recover the acid bottle in pursuance to the disclosure statement, however, the same could not be recovered. The accused was got medically examined. On 16.12.2015 the exhibits were sent to FSL Rohini for their evaluation and analysis. IO also obtained the opinion on the MLC of injured Mamta and her son and the injuries were opined to be 'simple' in nature. IO recorded the statements of witnesses and upon completion of investigation, charge sheet was filed against accused Manju u/s 326A IPC.
5) Cognizance of the offence u/s 326A IPC was taken by the Ld. M.M. vide order dated 04.07.2017. After compliance of Section 207 Cr.P.C., the matter was committed to the Sessions Court vide order dated 31.07.2017 for 08.08.2017.
Charge :
6) Charge was framed against accused Manju u/s 326A IPC. The charge so framed was read over and explained to the accused to which she did not plead guilty and claimed trial.
Prosecution Evidence :
7) In order to prove its case, the prosecution examined following witnesses.
(i) PW1 ASI Kali Charan - Duty Officer, who registered the FIR Ex. PW1/A. Sessions Case No. 491/2017 Page 4/27 ASJ-04/East/KKD/Delhi (ii) PW2 ASI Veerbhan - Duty Officer, who proved the DD No. 12A Ex. PW2/A. (iii) PW3 Mamta - injured herself. (iv) PW4 Santosh Tripathi, Sr. Scientific Officer, FSL, Rohini - proved his report Ex. PW4/A. (v) PW5 Dr. Dhirender Suman, who proved the opinion given by Dr. Jayant Lenka, Sr. Resident, on the MLC No.
4721/2015 of patient Mamta and MLC No. 4722/2015 of patient Krishna, both dated 18.11.2015, who had opined the nature of injuries as 'simple' in nature on both the MLCs Ex. PW5/A and Ex. PW5/B respectively.
(vi) PW6 HC Nemi Chand, who reached the spot alongwith the IO on 18.11.2015 and went to SDN Hospital and then GTB Hospital with the IO. The statement of the complainant was recorded by the IO in the police station and the rukka was handed over to PW6 for registration of the FIR. PW6 produced the rukka before the Duty Officer, upon which the FIR was registered. PW6 handed over the rukka and copy of the FIR to IO/SI Amit Dutt at the spot. He alongwith the IO tried to search for accused Manju but she could not be apprehended on that day.
(vii) PW7 Mahesh - husband of injured. Sessions Case No. 491/2017 Page 5/27 ASJ-04/East/KKD/Delhi (viii) PW8 Const. Varsha - part of investigation and arrest
of accused Manju vide arrest memo Ex. PW3/D and conducted her personal search vide personal search memo Ex. PW8/A and the disclosure statement was recorded by the IO vide Ex. PW8/B. She alongwith the accused and other police officials tried to recover the bottle of acid, however, the same could not be recovered. PW8 took accused Manju for her medical examination to SDN Hospital.
(ix) PW9 Ramesh Chand Lodhi, driver of CAT's Ambulance E-10, who reached at the spot and took injured Mamta and her son Krishna to the hospital.
(x) PW10 HC Ombir, who collected the exhibits from MHC(M) and deposited them at FSL Rohini vide RC No. 191/21/15 and after depositing them, returned back at the police station and handed over the acknowledgement to MHC(M).
(xi) PW11 Mohd. Farman, para-medical staff on CAT's ambulance, who reached the spot on 18.11.2015 and met injured Mamta and Krishna there having burn injuries and took them to SDN Hospital by CAT's ambulance.
(xii) PW12 SI Amit Dutt - IO. (xiii) PW13 ASI Pramod Kumar - MHC(M). (xiv) PW14 retired ASI Deshraj Singh, who took the FSL
report for getting subsequent opinion from the doctor on the Sessions Case No. 491/2017 Page 6/27 ASJ-04/East/KKD/Delhi MLC of injured Mamta. He recorded supplementary statement of injured Mamta and after recording statement of witnesses, he filed the charge-sheet in the court.
8) Ld. Counsel for the accused did not dispute the genuineness of the subsequent opinion regarding nature of injury sustained by Mamta and her son Krishna given by Dr. Dhananjay.
Accordingly, same was exhibited as Ex. CI.
Statement of accused :
9) After conclusion of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C wherein she denied the correctness of all the incriminating circumstances appearing in the evidence against her and stated that she was innocent and was falsely implicated in this case. She stated that the complainant was her sister-in-law (Brother's wife). 3-4 years before the date of incident in the year 2012, she had come to her maternal house with her children aged about 8years and 4 years.
Her father passed away in 2012 and thereafter her sister-in-law (Bhabhi) Mamta started troubling her. Mamta and her husband Mahesh (brother of the accused) did not want that the accused and her children to reside at the house of her parents. The other brothers did not have any issue with that. Mamta had also filed a civil suit for permanent injunction against her restraining Manju and her brothers Rozi and Ashok from dispossessing Mamta from the house. Later the suit was withdrawn in the year 2013 by Mamta. She opted to lead evidence in her defence. However, subsequently vide statement dated 10.04.2023 she choose not to Sessions Case No. 491/2017 Page 7/27 ASJ-04/East/KKD/Delhi lead any defence evidence and the defence evidence was accordingly closed.
Arguments :
10) It is contended by ld. Counsel for the accused that she has been falsely implicated in the present case. It is stated that there was a property dispute between the complainant and the accused as the house in which they used to reside was her father's property and Mamta, who was her sister-in-law (Bhabhi) did not like the fact that Manju alongwith her children was residing there. It is stated that the injuries upon Mamta were self inflicted and the brother of Mamta was a lab technician and the acid used in the incident was used for lab testing. It is stated that no recovery of the acid bottle has been effected. Admittedly, the clothes of the injured were neither torn nor burnt. It is stated that no blanket or mattress was seized by the IO despite the fact that the incident occurred in November. No call was made at 100 number immediately after the incident and no effort was even made to immediately take the victims to the hospital. Though the incident had occurred at 09.15-09.30 am, however, the PCR call was made at around 10.10 am and the victims were not taken to the hospital till then. The injuries were opined to be 'simple' in nature. The Hydrocloric Acid (HCl) used in the incident was the one, which was used in the lab. It is stated that no public witness was joined in the investigation despite the fact that tenants used to reside on the first floor of the house. It is stated that the complainant has inflicted injuries upon herself and falsely implicated the accused in the present case as she never liked the fact that the accused alongwith her children was residing in the Sessions Case No. 491/2017 Page 8/27 ASJ-04/East/KKD/Delhi house belonging to her father. It is accordingly stated that in absence of any material on record, the accused is liable to be acquitted of the offence she is charged with.
11) On the other hand, it is contended by ld. Addl. PP for the State that the accused had thrown acid upon victim Mamta and her son deliberately and caused burn injuries to them, which fact is revealed in the MLC of the injured persons and the acid used by the accused for causing burn injuries has been found to be Hydrochloric Acid as per the FSL result and in these circumstances the accused is liable to be convicted for the offence u/s 326A IPC.
Testimonies of material public witnesses:
12) PW-3 Mamta deposed that at the time of incident her Jeth/brother-in-law Ashok, sister-in-law/Nand Manju and brother-in-law/Nandoi Kamal were also residing at the same premises where she used to reside at house no. 2815/54, Gali no.
4, Dharampura near Nala, Gandhi Nagar, Delhi. On 18.11.2015, at about 9:30 am, she was present on the third floor of her house and she was breast feeding her child Krishna aged about 11 months while sitting on the bed. Her Nand Manju came to her room and asked her to hand over the gold jewelery, which was gifted to PW3 by her father-in-law in her marriage. PW-3 Mamta told that the gold jewelery was not available with her as the same was sold for the purpose of treatment of tuberculosis of her husband. Accused Manju threatened by saying that "Abhi Tujhe Jalati Hu" and thereafter accused went out of room of PW3 and after about two minutes, accused Manju returned with a bottle in Sessions Case No. 491/2017 Page 9/27 ASJ-04/East/KKD/Delhi her hand and threw its contents (acid) on her (PW-3 Mamta) and her child, due to which she got acid burns on her face, neck, both arms and her chest. Her child also suffered acid burns on his face, neck and both hands and after throwing acid, accused Manju went away. PW-3 Mamta further deposed that by the time her husband came after giving the clothes for ironing, she made a call to PCR and PCR police had come to her house and she and her child were taken to General Hospital (SDN Hospital) where she was given initial treatment and thereafter referred to GTB Hospital. PW-3 Mamta and her child were taken to GTB Hospital where they were treated. PW-3 Mamta further deposed that police had recorded her statement at GTB Hospital. She proved her statement Ex.PW3/A. She further deposed that the police had visited her house and prepared the site plan Ex. PW3/DA at her instance and had taken the photographs of the spot Ex. PW3/C (colly) and also seized her salwar-suit of coca- cola colour and chunni of coca cola and green colour, which she identified before the court and were exhibited as Ex. P-1 (colly), vide seizure memo Ex.PW3/B. She further deposed that on 20.11.2015, the police officials went to her house in search of accused but accused not present and thereafter she (PW-3 Mamta) along with her husband had gone to PS Gandhi Nagar where accused Manju was found sitting and thereafter accused was arrested vide arrest memo Ex.PW3/D.
13) PW-7 Mahesh, husband of complainant/victim Mamta, deposed that he has two brothers Roji and Ashok. Roji had expired. Ashok was a bachelor. He has one sister i.e. accused Manju, wife of Sh. Kamal. At the time of incident Ashok was Sessions Case No. 491/2017 Page 10/27 ASJ-04/East/KKD/Delhi living on the ground floor, accused Manju along with her family was living on the first floor and he (PW-7 Mahesh) along with his family was living on the second floor of H.No. 2815/54, Gali No. 6, Dharampura, Gandhi Nagar, Delhi. On 18.11.2015 at about 9:30 AM, when he was returning after giving the clothes for ironing, he saw that accused Manju coming downstairs quickly and she was looking worried and when he enquired from accused that why she was looking worried but accused did not give any reply to him. PW-7 Mahesh further deposed that when he reached in his room on the second floor, he saw his wife Mamta and his son Krishna in burnt condition and the burns appeared to be from some chemical substance. His son Krishna was having burn injuries on his face and neck and his wife was also having burn injuries on her face and neck. On enquiry, his wife told him that accused Manju was asking for jewelery articles and when she (PW-3 Mamta) declined, accused threw some chemical substance on her and their child and thereafter his wife called at 100 number from his phone and the PCR came in about 10/15 minutes and they called ambulance and took his wife and child to SDN Hospital and he had also accompanied them in the ambulance from there. Thereafter his wife and child were referred to GTB Hospital from SDN Hospital and from GTB Hospital, they went to PS Gandhi Nagar and on the complaint of his wife, FIR was registered.
14) From the perusal of testimony of PW3 it is revealed that on the date of incident i.e. 18.11.2015 at about 09.30 am when PW3 was present on the second floor of the H.No. 2815/54, Gali No. 6, Dharampura, Gandhi Nagar, Delhi, and Sessions Case No. 491/2017 Page 11/27 ASJ-04/East/KKD/Delhi breast feeding her child Krishna, aged about 11 months, while sitting on the bed, the accused came there and asked PW3 to hand over the gold jewellery which was gifted to PW3 by her father-in-law at the time of her marriage. When PW3 refused, the accused threatened PW3 to burn her and went out of the room. She returned after two minutes with a bottle in her hand and threw its contents on PW3 and her child, due to which PW3 and her child received acid burns. Thereafter the accused went away. Meanwhile husband of PW3 reached there and PW3 made a PCR call from the mobile phone of her husband and the police took PW3 and her child to SDN Hospital, from where they were referred to GTB Hospital.
15) The testimony of PW3 is consistent with her initial complaint Ex. PW3/A given to the police and there are no material contradictions between them. The statement of PW3 is also corroborated by the statement of her husband PW7 Mahesh, who is also brother of the accused. He also stated that when he was returning after giving clothes for ironing at about 09.30 am on 18.11.2015 he saw his sister coming downstairs quickly and she was looking worried. Upon inquiry, the accused did not give any reply to him. When he reached his room on the second floor, he saw his wife Mamta and his son Krishna having burn injuries on their face and neck. Mamta made a call to the police at 100 number and the PCR came within 10-15 minutes and took his wife and child to SDN Hospital in an ambulance, from where they were referred to GTB Hospital.
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16) The complainant Mamta was medically examined at SDN Hospital vide MLC 4721/2015 Ex. PW5/A, as per which burn injuries were found present on face, neck, upper limbs, chest right upper side and the patient was referred to GTB Hospital.
17) The son of complainant Mamta namely Krishna was medically examined at SDN Hospital vide MLC 4722/2015 Ex. PW5/B, as per which burn injuries were found present on face and neck and the patient was referred to GTB Hospital.
18) The nature of injuries were opined to be 'simple' in nature on both the MLCs.
19) The IO during investigation has also taken photographs of the injured persons i.e. the complainant and her son and they are Ex. PW3/C (colly) showing burn injuries caused to the complainant and her son.
20) The IO also seized the clothes of the complainant i.e.her salwar-suit and chunni Ex. P-1 (colly) vide seizure memo Ex. PW3/B and deposited the same at malkhana. On 16.12.2015 PW13 ASI Pramod Kumar MHC(M) handed over one sealed parcel to Const. Ombir (PW10) to deposit the same at FSL Rohini vide RC No. 191/21/15 Ex. PW13/A. Const. Ombir handed over the acknowledgement to PW13 vide Ex. PW13/B.
21) The FSL result is Ex. PW4/A. As per the FSL result Exhibit-1 i.e. one chocolate colour torn suit, chocolate colour Sessions Case No. 491/2017 Page 13/27 ASJ-04/East/KKD/Delhi torn salwar and one green and chocolate colour chunni was found to contain "Hydrochloric Acid".
22) Accordingly, the FSL result Ex.PW4/A corroborated the version of the complainant that accused Manju had thrown acid upon her which was also found on the clothes seized by the IO vide seizure memo Ex.PW3/B. PW-3 complainant identified the said clothes as those that she was wearing at the time of incident and the said clothes were exhibited as Ex.P-1 (colly) at the time of recording of her testimony before the court.
23) From the aforesaid it emerges that testimony of PW3 is also corroborated by medical and forensic evidence.
Defence of the accused persons.
24) In her statement recorded u/s 313 Cr.P.C. the accused Manju stated that she was innocent and was falsely implicated in this case. She stated that the complainant was her sister-in-law (Brother's wife). 3-4 years before the date of incident in the year 2012, she had come to her maternal house with her children aged about 8 years and 4 years. Her father passed away in 2012 and thereafter her Bhabhi (sister-in-law) Mamta started troubling her. Mamta and her husband Mahesh (brother of the accused) did not want that the accused and her children to reside at the house of her parents. The other brothers did not have any issue with that. Mamta had also filed a civil suit for permanent injunction against her restraining Manju and her brothers Rozi and Ashok from dispossessing Mamta from the house. Later the suit was withdrawn in the year 2013 by Mamta.
Sessions Case No. 491/2017 Page 14/27 ASJ-04/East/KKD/Delhi Accused Manju opted to lead evidence in her defence. However, subsequently vide statement dated 10.04.2023 she choose not to lead any defence evidence and the defence evidence was accordingly closed.
25) In order to prove the defence, Ld. Counsel for the accused Manju cross-examined PW-3 complainant. In her cross- examination, PW-3 deposed that one night prior to the present incident, accused Manju and her husband and her brother-in-law (Jeth) had sent her to the third floor to reside there. Prior to that she was residing at her parental house. She volunteered that she was residing at the parental house as accused Manju and her husband and her brother-in-law (Jeth) had thrown her out from the house after giving beatings about 2 ½ years prior to the incident. She had filed a complaint in that regard, however, the complaint was not produced before the court. She denied that she was living in the premises since earlier and had not come in the premises a day prior to the incident or that she was living on the third floor since the day she had come to the premises.
26) PW-3 further stated that the premises in which the incident took place was owned by her father-in-law. She denied that she had come to the premises to attend the last rites and ceremonies of her father-in-law. She volunteered that she was called as he brother-in-law (Jeth) Rozy had expired on 28.10.2015. She stated that she had filed a civil suit in Karkardooma Courts but denied that she had asked for her share in the property. She volunteered that she had asked for her right to reside in the property.
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27) She stated that there was no mattress or bed sheet on the bed when the incident took place. In her presence, the police did not take piece of the floor or the bed on which the acid was thrown. The bed sheet and mattress were lying on the side of the bed as seen in photographs Ex.PW3/C (colly). She denied that no incident took place or that she had herself thrown the acid after removing the mattress and bed sheet from the bed. She did not remember when she reached at SDN Hospital. She denied that her treatment did not continue after 18.11.2015. She denied that she did not have injury marks on her body as no such incident had taken place. She did not have any document for the private treatment taken by her and denied the suggestion that she did not have documents as no treatment was taken by her.
28) PW-3 deposed that her brother used to work in private diagnostic lab. She denied that she had procured the chemical / acid from her brother to falsely implicate the accused. She stated that she was facing the door of the room from the side while breast feeding her child and had seen the accused entering her room with acid bottle in her hand. The accused was holding the bottle at her back. PW-3 had not seen the bottle as her eyes were closed when the accused threw acid upon her and she had not seen the bottle even after the incident. PW-3 denied that the accused had not brought any bottle with her at the time of incident. The police arrived withing 5-10 minutes of making the call. The accused was present in the house and was cooking in the kitchen on the ground floor when the police arrived. The police took PW-3 and her son to the hospital immediately within Sessions Case No. 491/2017 Page 16/27 ASJ-04/East/KKD/Delhi 15 minutes. The accused left after locking her floor. PW-3 denied that the accused was cooking food when the police arrived at her house and volunteered that the accused left as soon as the police arrived. PW-3 deposed that there were three floors in the property i.e. ground floor, first floor and the second floor and by the word "teesri manzil", she meant the second floor of the house.
29) PW-3 further deposed that accused Manju was living in the entire premises. She could not tell why the accused was living in her father's house after leaving her matrimonial home. She denied that accused was living in her father's house due to quarrel with her husband. She denied that she did not want that the accused should also live in the said premises. She denied that she had filed the civil suit for the same reason or that quarrels took place between her and the accused on this issue. She volunteered that the quarrel had taken place as the accused was asking for her jewelery. Presently, she was residing in the same house. She denied that the accused had not gone to the house after the incident and could not say where the accused was residing. Though, the accused was not residing in the house, she was visiting the house almost every month. PW-3 could not tell when the accused lastly visited the house. She denied that the accused never visited the house after the incident or that she was deposing falsely in that regard. PW-3 denied that she had threatened the accused to falsely implicate her if she visited the house or that PW-3 was enjoying the entire property after the incident. PW-3 deposed that she was living on the third floor, her brother-in-law was residing on the ground floor and the middle Sessions Case No. 491/2017 Page 17/27 ASJ-04/East/KKD/Delhi floor had been locked by the accused. PW-3 denied that she had filed present false case to grab the property of her father-in-law.
30) PW-3 stated that the police had seized her clothes in the evening of 18.11.2015 and that she was wearing the same clothes till the evening when the police seized them. PW-3 stated that the accused remained in her room for less than five minutes at the time of incident. PW-3 did not close the door of her room after the incident when the accused left the room. PW-3 did not do anything in her defence when the accused threatened her "abhi tujhe jalati hoon". PW-3 denied that no quarrel ever took place or that for this reason only PW-3 had not taken any steps in her self defence. PW-3 denied that she did not close the door in her self defence as there was no threat given by the accused. She volunteered that accused returned within two minutes of giving the threat. No one else was present on the third floor at the time of incident. No other family member was present at the house at the time of incident. Her husband had come after about five minutes of the incident and she made a PCR call immediately after arrival of her husband.
31) PW-3 deposed that she did not contact any neighbour or doctor for her treatment till the police arrived. She was not undergoing any treatment at the time of recording of her testimony and volunteered that the doctor had prescribed coconut oil for the scars. She denied that no such incident took place or that she was deposing falsely.
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32) The husband of the complainant Mahesh was also cross-examined by ld. Counsel for the accused at length and he deposed that the house in issue was in the name of his father. He denied that during his life time his father had disowned him from his properties due to frequent quarrels. His father expired in the year 2011. He affirmed that the civil suit for permanent injunction filed in 2012 was also pending between him and accused Manju with regard to the said property in which Rozy, Ashok and Manju were arrayed as the defendants. He affirmed that he was not in possession of the property at the time of filing the suit as he had been thrown out by the defendants. He denied that the suit was withdrawn by him and volunteered that the suit was compromised between the parties and he was given a room on the ground floor. The statements of parties recorded in the civil suit are Ex.PW7/PX.
33) He denied that even after the compromise, there were disputes between him and accused Manju and his brothers regarding the property. PW-7 volunteered that even after the compromise, he was not living in the property to avoid any disputes. He had gone to the house after death of his brother and thereafter her sister, her husband and his brother forcibly sent them to live on the second floor.
34) He further deposed that accused Manju started living in the property after death of their father. He affirmed that there used to be quarrels between his wife and accused Manju on the issue as to why accused Manju was not living in her matrimonial house. He denied that accused Manju was living in the property Sessions Case No. 491/2017 Page 19/27 ASJ-04/East/KKD/Delhi along with her children after quarreling with her husband and volunteered that her husband Kamal was also living in the house till the incident and thereafter he left. He denied that after the incident accused Manju and his brother were not living in the property and volunteered that accused Manju left the property after 3-4 days of the incident but his brother Ashok lived till about 2-3 months after the incident.
35) On the date of incident, PW-7 left his house at 9:15 AM, for giving clothes for ironing near his house about 10 minutes away. He could not give any reason as to why he did not make any phone call to the police himself. He did not take his wife and child to any private doctor or clinic or hospital before the arrival of police and could not give any reason for that. He stated that they had slept on the second floor on the night prior to the incident on the same bed on which the incident took place. He denied that he had not made any telephonic call to the police himself or he had not taken his wife and child to the hospital immediately as it was a preplanned act to falsely implicate accused Manju and to evict Manju and his brother Ashok from the property. He denied that he had lodged a false case against accused Manju to get property vacated from her and for this reason they had sustained minor injuries and were discharged on the same day from the hospital.
36) It is contended by Ld. Counsel for the accused persons that from the testimony of PW-3, it is manifest that the relations between the accused and PW-3 were not cordial and even a civil suit had been filed by the complainant against the Sessions Case No. 491/2017 Page 20/27 ASJ-04/East/KKD/Delhi accused and other family members as the complainant wished to enjoy the property owned by her father-in-law and thus did not want the accused to live in the said property. It is further stated that even as per the testimony of PW-3 and the photographs Ex.PW3/A (colly), it is manifest that though the alleged incident took place by the complainant was sitting on the bed and feeding her child, however, the bedding and the bed sheet is seen folded and kept on one side of the bed as the complainant had herself thrown the chemical upon herself in order to falsely implicate the accused. The said chemical was procured from the brother of the complainant who was working in a diagnostic lab and due to the said reason, the acid burns were not deep and even the complainant did not rush to the hospital immediately after the incident as the incident took place at around 9:30 AM and the complainant waited for her husband to return after giving clothes for ironing and then made a PCR call at about 10:12 AM, then the complainant waited for the police to take her to the hospital. Meanwhile, no treatment was sought by the complainant at any nearby private hospital and no sense of urgency was shown by the complainant or her husband. The bottle of acid was not recovered by the police and no description of the bottle was given by the complainant as she has not seen the bottle herself owing to the fact that no acid was thrown by the accused.
37) In this regard, it is noteworthy that the complainant had deposed that she had filed a civil suit in Karkardooma Courts for her right to reside in the property. She stated that she had come to the house to attend the last rites of her Jeth brother-in- law Rozy who had expired on 28.10.2015 and till then she used Sessions Case No. 491/2017 Page 21/27 ASJ-04/East/KKD/Delhi to reside at her parental house as she was thrown out of her house by the accused and her husband and her brother-in-law about 2 ½ years earlier. The above said facts also reveal that the accused did not want the complainant to reside in the house belonging to father of the accused and even the accused has not pleaded that she had no grudges against the complainant. It is manifest that the relations between the accused and the complainant were not cordial which could also be the reason for the accused to cause injury to the complainant.
38) The accused has further contended that the complainant had thrown the acid procured by her from her brother who worked in a diagnostic lab upon herself to falsely implicate the accused. In this regard, it would be worthwhile to note that the IO had placed the photographs of the complainant and her son Krishna Ex.PW3/C (colly) showing burn injuries on the face, neck, arms of the complainant as well as on the face and neck of her child Krishna. It is unfathomable as to why a woman would throw acid upon her face, neck and arms and thereby destroy her appearance with the intention to falsely implicate someone in a case. Pertinently, burn injuries are also present on the face and neck of her son Krishna and it is not believable that a mother i.e. complainant would throw acid upon her son only with the intention to involve the accused in the present case. No doubt the complainant was taken to the hospital after the police reached the spot, however, that has to be seen in the context that the burn injuries were not grievous in nature. The complainant was taken to the hospital after arrival of her husband and calling the police. Merely because the injuries sustained were Sessions Case No. 491/2017 Page 22/27 ASJ-04/East/KKD/Delhi 'simple' in nature does not lead to a conclusion that they were self inflicted. The acid used in the incident is Hydrochloric Acid and depending upon the concentration the burns could even have been severe. Moreover, if the complainant and her husband had to falsely implicate the accused Manju, they would not have thrown the acid on the face of the complainant and her child Krishna. In these circumstances, considering that the relations between the complainant, her husband and the accused Manju were not cordial, the intention of the accused Manju to cause harm to the complainant by throwing acid upon the complainant is discernible from the facts brought on record.
39) Accordingly, accused Manju has not been able to prove that the complainant had inflicted injuries upon herself to falsely implicate accused Manju and hence, the defence raised by the accused Manju is not proved on record.
40) It is further contended by Ld. Counsel for the accused that injuries suffered by the victims are simple in nature and hence only section 323 IPC would be attracted in this case and not section 326A IPC. In this context it would be apposite to advert to the decision of the Hon'ble Supreme Court in Maqbool vs State of UP, Crl. Appeal 1143/2008 decided on 7.09.2018, wherein the Hon'ble Supreme Court made the following observations:
"5. Injuries caused or attempted to be caused by use of acid, have been, under the amendment, categorized differently as separate or special offences under Sections 326A and 326B of IPC:
"326A. Voluntarily causing grievous hurt by use of acid, etc.-Whoever causes permanent or partial damage or Sessions Case No. 491/2017 Page 23/27 ASJ-04/East/KKD/Delhi deformity to, or burns or maims or disfig- ures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be pun- ished with imprisonment of either descrip- tion for a term which shall not be less than ten years but which may extend to impris- onment for life, and with fine; Provided that such fine shall be just and reasonable to meet the medical ex- penses of the treatment of the victim; Provided further that any fine im- posed under this section shall be paid to the victim." "326B. Voluntarily throwing or at- tempting to throw acid.-Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing per- manent or partial damage or deformity or burns or maiming or disfigurement or dis- ability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. Explanation I.--For the purposes of section 326A and this section, "acid" in- cludes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or tem- porary or permanent disability.
Explanation 2.-- For the purposes of section 326A and this section, permanent or partial damage or deformity shall not be required to be irreversible."
6. Section 326A carries title of "voluntarily causing grievous hurt by use of acid" whereas Section 326B does not carry any such indication in the title regarding the nature of injury as grievous. But on closer analysis, it can be seen that both the Sections provide for eight types of injuries - (i) permanent damage, (ii) partial damage, (iii) deformity, (iv) burns, (v) maiming, (vi) disfigurement, (vii) disability or (viii) grievous hurt.
7. The first seven of the injuries referred to in the Sections are classified based on the normal aftereffect of acid attack whereas the eighth one is on the gravity of the effect. Under Sections 326A and 326B, grievous hurt is only one among the eight injuries. In view of the explanation under Section 326B, the resultant damage or deformity under 326A or 326B is not required to be irreversible. The other seven injuries may be either simple or grievous. The nature of injury being simple or grievous, Sessions Case No. 491/2017 Page 24/27 ASJ-04/East/KKD/Delhi is irrelevant for distinguishing between Section 323 and Section 326A of IPC or between Section 326A and Section 326B of IPC. If the injury referred to under Sections 326A or 326B is one among the specified eight injuries, whether the seven of them be simple or grievous, the special provisions are attracted.
8. The basic difference between Section 326A and 326B of IPC is the presence of actual injury under Section 326A . The resultant injury has made the offence more serious with a mandatory minimum punishment of ten years which may extend to imprisonment for life and, in either case, with a fine. The fine is mandatory and the quantum should be just and reasonable in the sense that it should be, in any case, sufficient to meet the medical expenses for the treatment of the victim. Therefore, the second proviso under Section 326A requires that the fine imposed should be paid to the litigant. Under Section 326B, the mere act of throwing or attempt to throw or attempt to administer or attempt to use any other means with the intention of causing any of the injuries referred to in the Section, is to be visited with a mandatory minimum imprisonment of five years, which may extend to seven years and fine.
9. 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."
41) The Hon'ble Supreme Court further observed that:
"15. In Laddu Ram (supra), the High Court of Rajasthan has taken the view that the injury caused being simple in nature,Section 326A of IPC is not attracted but only Section 326B of IPC would apply. Similarly, the High Court of Madras in M. Siluvai Murugan @ Murugan (supra) held that if the injury caused by use of acid is simple in nature, there cannot be any conviction under Section 326A of IPC. In M. Siluvai Murugan @ Murugan (supra), though the High Court has analysed the legal position correctly, it has unfortunately committed a patent error in taking note of the nature of injury as simple and altering the conviction to Section 326B of IPC on the ground that the injury as per medical report was simple being chemical injury at twelve per cent.
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16. As we have already discussed above, it is not the percentage or gravity of injury, which makes the difference. Be it simple or grievous, if the injury falls under the specified types under Section 326A on account of use of acid, the offence under Section 326A is attracted. Section 326B would be attracted in case the requirements specified are met on an attempted acid attack. Therefore, both the High Court of Rajasthan in Laddu Ram (supra) and High Court of Madras in M. Siluvai Murugan @ Murugan (supra)do not lay down the correct position of law and they are overruled."
42) It is thus held by the Hon'ble Supreme Court that it is not the percentage or gravity of injury, which makes the difference. Be it simple or grievous, if the injury falls under the specified types under Section 326A on account of use of acid, the offence under Section 326A is attracted. In the present case, acid burn injuries were found present on face, neck, upper limbs and chest right upper side of complainant Mamta and on face and neck of injured Krishna. The injuries were caused by Hydrochloric Acid (HCl) as per the FSL result Ex. PW4/A. The complainanant has supported the allegations against accused Mamta in her testimony recorded before the court and it is proved on record that on 18.11.2015, at about 09.30 am, accused Manju threw acid upon complainant Mamta and her son Krishna, who received acid burns which fact is corroborated by the MLC No. 4721/15 Ex. PW5/A of complainant Mamta and MLC 4722/2015 Ex. PW5/B of Krishna, son of the complainant. The injuries were opined to be 'simple' in nature. In light of law discussed above, even though the injuries are opined to be 'simple' in nature the offence committed would fall u/s 326A IPC. The accused has taken the defence of false implication owing to family disputes, however, the defence taken by the Sessions Case No. 491/2017 Page 26/27 ASJ-04/East/KKD/Delhi accused that she was falsely implicated by accused Mamta is not proved on record.
43) In view of the aforesaid discussion, it is proved on record that on 18.11.2015 at about 9:30 AM, accused Manju threw Hydrochloric Acid upon complainant Mamta and her son Krishna with the intention to cause acid burns and thereby caused simple injuries on their person and hence committed an offence punishable u/s 326-A IPC. Accordingly, accused Mamta is held guilty and convicted for the offence punishable u/s 326-A IPC.
order
DEEPALI Digitally signed by
Announced in the open Court DEEPALI SHARMA
SHARMA Date: 2023.05.20
on this 20th day of May, 2023 15:40:24 +0530
(Deepali Sharma)
Additional Sessions Judge-04
East District/KKD Courts/Delhi.
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