Delhi District Court
State vs . Saleem on 8 May, 2014
IN THE COURT OF SH. DHIRENDRA RANA
METROPOLITAN MAGISTRATE: WEST02, DELHI
FIR No.931/01
Case ID:02401R1045362003
State Vs. Saleem
PS Rajouri Garden
U/s 326 IPC
JUDGMENT
Serial No. of the case 222/II/03 Date of commission of 03.10.2001 offence Date of institution of the 05.04.2003 case
Name of the complainant Mohd. Roshan S/o Mohd. Sakuf. Name of accused, Mohd. Saleem S/o Mohd. Abdul Hayat parentage & address R/o Village Shahpur Majhol PS Navhatta, District Sahrasa, Bihar.
Offence Proved Under Section 326 IPC Plea of the accused Pleaded not guilty. Date of arguments 03.05.2014 Final order Convicted Date of Judgment 08.05.2014
1. Vide this judgment I shall dispose off the present case filed by ASI Om Prakash (hereinafter referred as IO) against Mohd. Saleem (hereinafter referred as accused) on the complaint of Mohd. Roshan (hereinafter referred as FIR No.931/01 1 of 10 PS Rajouri Garden complainant) for committing offence under section 326 of The Indian Penal Code (hereinafter referred as IPC). BRIEF FACTS:
2. Brief facts of the present case are that on 03.10.2001, DD entry no.24 was registered at PP Raghubir Nagar at 4:50 am from Guru Gobind Singh Hospital that one person namely Mohd. Roshan has been admitted in hospital by his sisterinlaw in burnt condition. The DD entry was handed over to the IO who along with Ct. Nar Singh proceeded to the hospital and found that the injured was admitted in the hospital. It was a case of acid attack. IO recorded statement of the victim/complainant who stated that he along with his two sons was sleeping in the factory situated at B574, Raghubir Nagar, near Gurudwara. Around 4:00 am, the complainant woke up to answer nature's call and when he was doing so, accused poured acid on his back. Complainant disclosed the name of the attacker as Salim and stated that Salim wanted to marry victim's wife and was known to the complainant prior to the incident. IO prepared the rukka and FIR under Section 324 IPC was registered. Subsequently, doctor opined the injuries as grievous and Section 326 IPC is added in place of Section 324 IPC. The accused was arrested and after completion of investigation, the charge sheet was filed on 14.07.2003.
3. Copies under Section 207 of Cr.P.C were supplied to FIR No.931/01 2 of 10 PS Rajouri Garden the accused and charge under Section 326 IPC was framed against the accused on 03.07.2004 to which he pleaded not guilty and claimed trial. Thereafter, the matter was put up for prosecution's evidence.
Evidence recorded during trial
4. In order to prove its case against the accused, the prosecution has examined six witnesses.
5. PW1 Mohd. Roshan is the complainant. He deposed on the lines of his complaint and exhibited the same as Ex.PW1/A. His deposition has gone unrebutted as he has not been cross examined by the accused.
6. PW2 Mohd. Rustam is the son of the complainant and has been cited as eye witness of the incident. He stated that he heard cries of his father and when he went out, he saw that accused was running away from the spot. He clearly identified the accused and deposed against him.
7. PW3 Mohd. Sohrab is second son of the complainant. He also deposed on the lines of PW2 against the accused.
8. PW4 Smt. Madina is the sister in law of the victim. She stated that around 4 am, her nephew Rustam came to them and informed that somebody had poured acid on the victim. She got admitted victim in hospital.
9. PW5 HC Jagdish was Duty Officer on 03.10.2001 and FIR No.931/01 3 of 10 PS Rajouri Garden he exhibited the FIR as Ex.PW5/A and endorsement on rukka as Ex.PW5/B.
10. PW6 Dr. Ms. Parveen exhibited the MLC of the injured as Ex.PW6/A and she stated that victim was having 35 per cent burns on his body.
11. IO Om Prakash has been examined as PW4 inadvertently whereas he should have been examined as PW7. He deposed the investigation being carried out by him. He exhibited the rukka as Ex.PW4/A, arrest memo of the accused as Ex.PW4/B, personal search of the accused as Ex.PW4/C and disclosure statement of the accused as Ex.PW4/D.
12. Thereafter, prosecution evidence was closed vide order dated 30.10.2013. Statement of the accused was recorded on 13.11.2013 in which he pleaded false implication and stated that he was not present at the spot and he went to PP Raghubir Nagar to give bail of his worker Anwar and there he was arrested by the police and was falsely implicated in this case. He opted not to lead defence evidence.
11. I have heard final arguments to be put forth by Ld. APP for the State and Ld. Defence Counsel Sh. Rajesh Dhankar for the accused.
BRIEF REASONS FOR THE DECISION:
12. It is alleged against the accused that he attacked the FIR No.931/01 4 of 10 PS Rajouri Garden victim by pouring acid on his back and inflicted injuries on his person which were grievous in nature. To prove the allegations against the accused, prosecution has examined complainant and his two sons as eye witnesses. They have thoroughly deposed against the accused and supported the prosecution's case.
13. Ld. Defence Counsel argued that it is alleged against the accused that he poured acid on the victim around 4 am when he came out of the factory to answer nature's call. How would accused know that complainant would come out from the factory at 4 am because this fact was not in the knowledge of the accused and it is highly improbable that a person would keep waiting for the victim whole night and attacked him as and when he came out the factory. The circumstances in which the whole story has been weaved, is highly doubtful and it reflects that the injuries were selfinflicted and accused has been falsely implicated. The victim had the reason to falsely implicate the accused as wife of the victim was having extra marital affair with the accused and victim has weaved the story against the accused to settle his account with the accused.
The argument put forth by Ld. Defence Counsel relates to happening of a certain event in unnatural circumstances. It has been argued that it was not in the knowledge of the accused as to when the complainant would come out to answer nature's call but FIR No.931/01 5 of 10 PS Rajouri Garden sometimes some strange things happen in life which we do not counter in the daily wear and tear of the life. Even for the sake of arguments, if we presume that accused was not present at the spot at the time of incident, then onus was on the accused to disclose the fact as to where he was present around 4 am on the day of incidence. Not even a single word has been whispered by the accused about his presence to support his contention. He could have disclosed the name of place and the name of person with whom he was present if he was not present at the spot. Complainant has not been crossexamined by the accused. Although, an application under Section 311 Cr.P.C was allowed by the court to crossexamine the witness but in vain as victim had already left for his heavenly abode. Defence has crossexamined two other eye witnesses i.e. sons of the complainant but perusal of their crossexamination reflects that nothing has been said on behalf of the accused that he was present somewhere else and was not present at the spot. It is not suggested to the witnesses that the person they saw running from the spot was some other person and was not accused. It is further not suggested to PW3 that injuries were selfinflicted by the complainant. Accused had another opportunity to put forth his defence that at the time of recording of his statement under Section 313 of Cr.P.C but he did not utter even a single word about his presence at some other FIR No.931/01 6 of 10 PS Rajouri Garden place and selfinfliction injuries by the complainant. In fact, he stated that he was arrested by the police when he went to give bail of his worker Anwar at PP Raghubir Nagar. If this story is true, then accused was at liberty to examine the person namely Anwar in defence evidence who might have corroborated his version. No defence evidence has been examined by the accused. As far as self infliction of injury is concerned, it is hard to digest that a person would pour acid on his body to falsely implicate some other person. Perusal of the MLC reveals that victim was having injuries on his back, abdomen, lower part of chest, buttocks and on right thigh caused by the acid. If a person has intention to falsely implicate somebody else, then he could have poured acid on his leg or hand and that too on a small portion of his body and in small quantity. The motive for false implication is actually the real motive behind commission of crime in this case. It has been admitted by the accused and the complainant that wife of the complainant was having extra marital affair with the accused which became bone of contention between the accused and the complainant. Complainant had objected to this affair and to teach him a lesson, accused poured the acid on the victim. Hence, argument of selfinflicted injuries and motive of false implication were not in the mind of the accused prior to final arguments other wise manner of crossexamination could have been different. It FIR No.931/01 7 of 10 PS Rajouri Garden seems that these defences have seen the day light only at the stage of final arguments and therefore, I find no substance in them, hence, they are rejected.
14. It is further argued by Ld. Defence Counsel that IO has not recovered the flask or Can which was used by the accused to pour acid on the victim. It is further argued that no FSL report is available on record to prove the fact that injuries were caused due to acid. No exhibits were sent to FSL by the IO to prove his case. It is further not investigated as to how the accused came in possession of the acid and from where. All these latches in the investigation creates a doubt in the prosecution's story and same goes in the favour of the accused.
The arguments levelled by Ld. Defence Counsel pertains to faulty investigation and follies committed by the IO during investigation. It is settled law that the case of the prosecution cannot be distrusted merely because IO has not investigated the case properly. All the points raised by the defence falls within this category and do not affect the merits of this case. It has been proved by prosecution by deposition of PW6 Dr. Parveen Bala that injuries were caused by the acid attack and she has exhibited the MLC of the victim. She stated that she had smelt acid when she had examined the victim on the date of incident. Prosecution has proved the allegations against the accused by way FIR No.931/01 8 of 10 PS Rajouri Garden of evidence of PW1, PW2 and PW3 that acid was poured by him and injuries have been proved by PW6 by exhibition of MLC. These are material facts in this case which have been duly proved by the prosecution and the lacunae pointed by defence in the investigation are of no avail to the accused.
15. Last but not the least argument addressed by the Ld. Defence Counsel is that PW1, PW2, PW3 and PW4 are interested witnesses in this case as they were having grudge against the accused because of extra marital affair of the accused with wife of the victim and hence, their deposition cannot be relied upon by the court to convict the accused.
The argument is again misconceived and without any merit in it. The law has been settled in this regard by the Higher Courts on several occasions that a witness cannot be termed as dishonest and a liar merely because he happens to be a relative of the victim. A person can be convicted on the basis of a sole testimony who inspires confidence of the court and whose testimony is without any blemish. In the present case, PW2 and PW3 are the eye witnesses of the incident whereas PW1 is the victim himself. They have deposed in unequivocal manner that it was the accused only who had committed the offence. I find no reason to discard the testimonies of these witnesses. Hence, argument of interested witness is rejected accordingly.
FIR No.931/01 9 of 10 PS Rajouri Garden
16. Hence, keeping in view the above discussion and material available on record, I am of the view that the prosecution has proved its case against the accused beyond reasonable doubt under Section 326 IPC and I hereby convict the accused Mohd. Saleem for the commission of the offence under Section 326 IPC.
17. Matter be listed for arguments on sentence on 21.05.2014.
ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA ON 08.05.2014. MM02/WEST DELHI FIR No.931/01 10 of 10 PS Rajouri Garden