Delhi District Court
State vs Virender Singh on 27 November, 2017
In the Court of
Dr. Satinder Kumar Gautam: ASJ-03(East):
Karkardooma Courts: Delhi.
S.C. No: 1232/2016
(ID No.: 02402R0045482015)
State Versus Virender Singh
S/o Sh. Ram Bharose
R/o Jhuggi No. 28-Z,
Ram Prasad Bismil Camp,
Shashi Garden, Delhi.
FIR No. 436/2014
PS. Pandav Nagar
U/s. 326-A IPC
Chargesheet Filed On : 28.01.2015
Chargesheet Allocated On : 17.04.2015
Court Presided over on : 06.11.2017
Judgment Reserved On : 21.11.2017
Judgment Announced On : 27.11.2017
JUDGMENT
1. On 05.06.2014 at about 1 a.m. during night hours Mohit while going to his roof to take a sleep, accused, his neighbour, was seen coming downstairs from his (Mohit) stairs. Mohit asked him not to get down from said stairs as he might fell on which accused started murmuring/muttering and went downstairs. Accused came there after sometime carrying a plastic bottle in his hands and poured the content of the same on Mohit. On account of it, Mohit felt burn sensation in his waist and body. He (Mohit) immediately came downstairs and SC No. 1232/16 State Vs. Virender Singh Page 1 of 9 called his parents. His father noticed chemical on the body of Mohit. Police was informed.
2. On receipt of DD No. 6-A dated 05.06.2014 police machinery came into motion. Injured was rushed to Lal Bahadur Shastri (hereinafter referred as LBS Hospital) from where he was referred to Guru Teg Bahadur Hospital (hereinafter referred as GTB Hospital). Police reached there. Medico Legal Case (hereinafter referred as MLC) of injured/victim/complainant was obtained. Upon statement of complainant to the above effect, present FIR bearing case FIR No. 436/2014 under Sec. 326-A IPC PS Pandav Nagar was registered against the accused.
3. During investigation, chemical plastic container etc. were lifted from the spot. Accused was arrested and after completion of investigation, chargesheet was filed against the accused before the court of ld. MM.
4. After compliance of provisions of Sec. 207 CrPC by the court of learned MM, case was committed to the court of Sessions, as the offence was exclusively triable by it.
5. Vide order dated 26.05.2015, passed by my learned Predecessor, charge under Sec. 326-A IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
6. To prove the guilt against the accused, prosecution examined 11 witnesses in support of its case who are as follows:
PW-1 Mohit, complainant, supported the prosecution case in his examination-in-chief. He deposed about the crime committed by the accused. He SC No. 1232/16 State Vs. Virender Singh Page 2 of 9 proved his statement Ex.PW1/A. PW-2 ASI Data Ram, Duty Officer, proved the copy of the FIR as Ex.PW2/B with copy of the DD as Ex.PW2/A. PW-3 Dr. Shaleen Tiwari proved the portion X on MLC Ex.PW3/A of Mohit.
PW-4 Const. Narendra joined the investigation of this case with the IO and got the case registered on being ruqqa handed over to him.
PW-5 HC Sanjay is the first IO who recorded the statement of injured and prepared the ruqqa. He is also a witness to the arrest of accused and proved the memos in this respect.
PW-6 ASI Yogender Singh is part IO of the case and filed the chargesheet after completion of investigation.
PW-7 Rohtash is the father of injured/complainant and is also a witness to the arrest of the accused.
PW-8 Dr. Lingaraj Sahoo, FSL expert, proved FSL report Ex.P1. PW-9 Const. Ashok took the exhibits to the FSL and deposited there in intact condition.
PW-10 Dr. Dhananjay Kumar identified the handwriting of Dr. Ayush and proved the nature of injuries of injured as simple.
PW-11 SI Ajay Moral is the IO of case and proved the memos prepared in this respect.
7. Statement of accused was recorded under Sec. 313 CrPC. The accused denied the allegations of the case of prosecution levelled against him. SC No. 1232/16 State Vs. Virender Singh Page 3 of 9 He pleaded that he used to keep the paint material on the roof and in the night of 04.06.2014 victim Mohit and some other boys were playing with these paint boxes lying on the roof and started snatching them from each other in the midst of which one of the boxes might have fallen on the victim Mohit. Victim out of fear of his father that he would be scolded by his father falsely named him (accused). Accused did not opt to lead any defence evidence.
8. Learned Addl. PP for the State argued that prosecution has been able to prove the charge against the accused through evidence of material witnesses coupled with other material witnesses including medical evidence. He also submitted that there is no reason to implicate the accused falsely in this case by complainant/victim as no ill-will, grudge or enmity has either been alleged or proved against against him. He argued that no material contradiction is there and minor discrepancies and contradictions, if are there, be ignored in view of well settled law on this issue and particularly in view of the circumstances of the case in which manner incident occurred. Ld. Addl. PP prayed for conviction to the accused.
9. Learned defence counsel submitted that prosecution case is liable to be demolish as no independent witness was joined despite the area being crowded one. He submitted that neither Sukhbir was medically examined nor cited as witness which creates doubt on the prosecution case. Besides the above, ld. counsel submitted that source of alleged acid was not brought on record nor the clothes of the injured were seized, to prove the case and this makes the prosecution case falls flat. Ld. counsel submitted that accused is a SC No. 1232/16 State Vs. Virender Singh Page 4 of 9 painter by profession and thinner is used in his profession. Ld. counsel submitted that non filing of photos of the spot is also fatal to the prosecution and that recovery was planted on the accused. Ld. counsel also submitted that injuries were opined as simple and acid injuries as projected in the prosecution case cannot be simple and this all casts a serious doubt on the prosecution story. Besides the above, ld. counsel for the accused submitted that there are many contradictions and improvements in the testimonies of the witnesses which make the prosecution case doubtful and thus prayed for acquittal of the accused.
10. To prove the prosecution case, material witnesses are PW-1 Mohit, being victim and PW-8 Dr. Lingaraj, FSL Expert. MLC of the injured and nature of injuries are also material for disposal of the case.
11. Present case is under Section 326-A IPC. To facilitate the matter, Section 326-A IPC is reproduced as under:
Section 326A - Voluntarily causing grievous hurt by use of acid, etc.
- Whoever causes permanent or partial damage or deformity to, or burns, or maims or disfigures 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 punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim;
Provided further that any fine imposed under this Section shall be paid to the victim.
12. Mohit, PW-1, clearly narrated the incident by deposing that on the date, time and place accused caused injuries to him by throwing acid on him. He in equivocal terms stated that on 05.06.2014 at about 1 a.m. while accused was going downstairs from his terrace via the staircase of his house and since two SC No. 1232/16 State Vs. Virender Singh Page 5 of 9 steps were missing, he advised the accused not to go from there and then accused came after sometime, taken out bottle filled with acid and sprinkled the acid on him from the ground floor and when the acid was sprinkled, he was sleeping at that time. He also deposed that at the time of the incident he was wearing underwear. He also deposed that when accused sprinkled acid, he was lying. There is no reason for false implication of the accused as either no ill-will, grudge or enmity has either been alleged or proved. Rather injured would be the most interested person to see the actual culprit behind bars. Accused never took any plea that there is any reason for his false implication on any count. He only took a plea that victim himself opened one box kept on the roof of the accused or that due to presence of gas inside, the chemical came out and fell on his (victim) body. Accused failed to give any reason for his false implication. Only during his statement under Sec. 313 CrPC, he took plea that on account of fear that he (victim) would be scolded by his father, he named the accused. This is no plausible explanation.
13. It is also most interesting factor that accused came with a plea that one more person namely Sukhbir also sustained injuries on account of chemical fell on his body. He took a plea that said person was neither cited nor examined by the prosecution and this all makes the prosecution case doubtful. If plea of the accused is taken as gospel truth, even then accused is at liberty to produce said person to separate the oil from waters. But accused failed to do so. Even he did not opt to lead defence evidence. Besides the above, perusal of the DD No. 6A dated 05.06.2014 lodged after the incident is clear indication that someone has SC No. 1232/16 State Vs. Virender Singh Page 6 of 9 thrown acid on victim. This all is sufficient to conclude that defence of the accused has no value in the eyes of law and accused is beating about the bushes.
14. Regarding the contradictions and improvements pointed out by ld. defence counsel, it is also well settled law that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to the lapse of memory may be given due allowance. For holding this view, I am supported with the cases reported as Appabhai Vs. State of Gujrat and reported as AIR 1988 SC 696 and Siddiqua Vs. Narcotics Control Bureau (2007 Crl L.J. 1471 of Hon'ble High Court of Delhi.
15. Now, question arises whether accused can be held guilty under Sec. 326A IPC or not. As mentioned above and perusal of the language of the said Section, it is clear that if anyone voluntarily causing grievous hurt by use of acid, etc. and causes permanent or partial damage or deformity to, or burns, or maims or disfigures 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 liable for the commission of the said offence.
16. MLC of the injured dated 05.06.2014 is clear on the aspect that he sustained "MULTIPLE BURNS PATCHES PRESENT ON BACK, B/L THIGH" and SC No. 1232/16 State Vs. Virender Singh Page 7 of 9 as per Ex.PW3/A patient was referred to higher Section - Plastic Surgery Department. MLC is also clear that on the date of incident itself, injured was referred to SR Surgery.
17. Ex.PW6/B, FSL report clearly mentions - "On Chemical examination, exhibit '1' was found to contain 'Hydrochloric Acid."
18. All these medical experts and FSL Expert were not cross-examined despite opportunity is given as such their testimony and expert report are unrebuttable and unchallenged.
19. Regarding the contention that injuries are not possible if Hydrochloric Acid is thrown on someone, has no value in view of the above material on record and also in view of the language of the Section 326A IPC, as mentioned above. Injuries sustained by the victim are on his back and B/L thigh which is clear indication that same cannot be possible when someone opened the container and chemical came out on account of pressure of gas. Rather same is possible only on the back when someone sprinkled/threw the same on someone. Hence, defence of the accused falls flat.
20. Section 106 Indian Evidence Act clarifies that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
21. In the instant case, the accused in his statement recorded under Sec. 313 CrPC as well as suggestion to the witnesses that PW Mohit has sprinkled any chemical or acid of his own due to gas inside the said box. There is no evidence what was the box, what contains therein, whether it was SC No. 1232/16 State Vs. Virender Singh Page 8 of 9 purchased against any receipt etc. There is no oral and documentary evidence t this effect. As such, the accused unable to prove the alleged defence though it was well within his knowledge. As such, as per the provision of Sec. 106 IE Act lies upon him to prove the fact which is within his knowledge. The accused failed on this account. As such, the adverse inference be drawn against him.
22. Section 105 Indian Evidence Act of 1872 clarifies that the burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. In case of Samudra Vs. State of Tamil Nadu (1997) 2 Crimes 185 (Mad.), it is observed that when the prosecution has established its case, it is incumbent upon the accused under Sec. 105 Indian Evidence Act to establish the cause of his private defence by showing probability. The accused in the present case/scenario has not only lead any defence evidence even though does not put forward himself to be examined under Sec. 315 CrPC.
23. In view of the above discussion, court is of the view that prosecution has able to prove its case against the accused beyond all reasonable doubts to the effect that accused Virender Singh S/o Sh. Ram Bharose has committed an offence punishable under Sec. 326A IPC. Accordingly, accused is held guilty for the offence punishable under Sec. 326A IPC.
Announced in open court on 27th day of November, 2017 (Dr. Satinder Kumar Gautam) ASJ-03 (East):
KKD Courts: Delhi.
SC No. 1232/16 State Vs. Virender Singh Page 9 of 9