Punjab-Haryana High Court
Raj Kumar vs State Of Haryana on 7 November, 2013
Author: K.C. Puri
Bench: K.C. Puri
Crl.A.No. S-1527 SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl.A.No. S-1527 SB of 2003 (O&M)
Date of decision : 7.11.2013
...
Raj Kumar
................Appellant
vs.
State of Haryana
.................Respondent
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. Ashish Kumar Gupta, Advocate for
Sh. Terminder Singh, Advocate for the appellant.
Sh. Amit Kaushik, Senior DAG, Haryana
...
K.C. Puri, J.
Challenge in this appeal is the judgment and order dated 8/9.5.2003 passed by Sh. Ashok Bhardwaj, Additional Sessions Judge, Kurukshetra, vide which the accused appellant Raj Kumar has been convicted under Sections 307, 326 and 324 IPC and sentenced to undergo imprisonment and fine as under:-
u/s 307 IPC To undergo rigorous imprisonment for a period of 7 years and to pay a fine of `2,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 6 months.
u/s 326 IPC To undergo rigorous imprisonment for a Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -2- period of 4 years and to pay a fine of `1,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 4 months.
u/s 324 IPC To undergo rigorous imprisonment for a period of 1 year and to pay a fine of `500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 2 months.
However, all the sentences were ordered to run concurrently. The law was set in motion by recording the statement of Raj Kishan injured by ASI Piara Singh on 3.5.1996 at 2.15 P.M. Complainant - injured Raj Kishan has stated that he is resident of village Yara and used to deal in the business of sale and purchase of cattle. On 2.5.1996, his son Parveen Kumar, who is student of 10th class was playing with some other children in front of the milk dairy of the accused Raj Kumar. Raj Kumar slapped his son Parveen Kumar on the pretext that he had been creating nuisance. Parveen Kumar came back but had not narrated the occurrence to him. On 3.5.1996, on the day of occurrence, one Babu Ram a resident of the same village told him that his son Parveen Kumar was given beatings by Raj Kumar. The complainant alongwith his son Parveen Kumar went to the shop of Raj Kumar to lodge his protest. Raj Kumar accused was found present in front of his shop near a Burji. The complainant asked as to whey he has given beatings to his son, who was of younger age. Raj Kumar picked up a can containing acid and threw the same upon complainant Raj Kishan. Amit Kumar accused arrived there, who caught hold of him and exhorted accused Raj Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -3- Kumar to finish the job. Raj Kumar again poured acid upon him. The complainant asked his son Parveen Kumar to run away but when his son Parveen Kumar tried to run away, accused Raj Kumar again threw acid upon Parveen Kumar as well as upon the complainant. The occurrence was witnessed by Yashpal who was present outside the shop. The complainant raised the alarm which attracted some persons at the spot. Raj Kishan and Parveen Kumar went to the house of Sarpanch, who took them to Government Hospital, Babain, from where they were referred to Civil Hospital, Kurukshetra. Raj Kumar filed complaint under Sections 323, 441, 447 and 506 IPC read with Section 34 IPC against Raj Kishan and Parveen Kumar alleging that both Raj Kishan and Parveen Kumar had come to his shop. Raj Kishan inflicted injuries upon Raj Kumar. He tried to put acid upon Raj Kumar appellant.
Initially, case under Section 326 read with section 34 IPC was registered, but later on as the injuries on the person of Raj Kishan were declared dangerous to life, offence under Section 307 IPC was added. After completion of the investigation, challan was presented against the accused. The case was committed to the Court of Sessions.
Charge under Sections 326, 307 IPC read with Section 34 IPC was framed against both the accused Raj Kumar and Amit Kumar, to which they pleaded not guilty and claimed trial.
The prosecution, in order to bring home guilt of the accused, examined PW-1 Dr. Bawa Singh, PW-2 Dr. K.K, Chawla, PW-3 Dr. S.S. Saini, Medical Superintendent, LNJP Hospital, PW-4 Dr. S.N. Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -4- Bansal, Medical Officer, LNJP Hospital, PW-5 Dr. Rajesh Saini, M.O. LNJP Hospital, PW-6 HC Des Raj, PW-7 Attar Singh, UGC, PW-8 Mukesh Kumar Draftsman, PW-9 Raj Kishan, injured-complainant, PW-10 Surender Kumar, Computer Assistant, LNJP Hospital, PW-11 Parveen Kumar, son of the complainant, PW-12 Sheri Singh, SI/SHO, PW-13 Devi Ram Sarpanch, PW-14 ASI Piara Singh and closed the prosecution evidence.
The accused were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to them to which they denied and pleaded false implication. Raj Kumar has stated that complaint has been filed at the instance of Babu Ram. Complainant came to the dairy of Raj Kumar and started giving beatings to him and picked up a quarrel with him. Complainant also tried to pour some acid on his person and in the scuffle some acid fell upon the complainant. The complainant obtained false report in connivance with the police. Accused Amit Kumar simply denied his presence at the time of alleged occurrence.
The accused were called upon to lead their defence evidence and they examined DW-1 Babu Ram, DW-2 Yashpal, DW-3 Krishan Chander and closed their defence evidence.
Both the FIR case and complainant case were decided together. Learned trial Court after appraisal of the evidence convicted accused Raj Kumar under Sections 307, 326, 324 IPC as narrated above. Co-accused Amit Kumar was acquitted by the trial Court. However, complaint filed by Raj Kumar under Sections 323, 441, Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -5- 447, 506 read with Section 34 IPC was dismissed.
Feeling dissatisfied with the judgment and order dated 8/9.5.2003 passed by Sh. Ashok Bhardwaj, Additional Sessions Judge, Kurukshetra, the accused appellant Raj Kumar has preferred the present appeal in respect of his conviction.
Learned counsel for the appellant has submitted that according to the prosecution, DW-1 Babu Ram and DW-2 Yashpal are the eye witnesses of the occurrence. The prosecution has not examined those witnesses. The accused have produced those witnesses and they have supported the version given by the accused appellant and have discarded the version given by the prosecution. It is further submitted that according to prosecution, Chetan and Rohit also received acid burns, but both of them have not been examined. So, it is submitted that the prosecution story is doubtful.
I have considered the said submission, but do not find any force in the said submission.
On re-appreciation of the evidence, the case of the prosecution against Raj Kumar accused is fully proved. Mere fact that Amit Kumar has been acquitted, does not create doubt in the prosecution version. It cannot be possible that while throwing the acid, the other person would caught hold the victim, as there is every possibility of receiving the injuries by the person who caught hold the victim. No injury was found on the person of Amit Kumar and as such he has been rightly acquitted by the trial Court.
Normally, the independent witnesses try to avoid appearance Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -6- in the Court. The prosecution story is fully corroborated by the testimony of PW-9 Raj Kishan and PW-11 Parveen Kumar. Both of them are injured witnesses and their version cannot be doubted. Statement of Babu Ram and Yashpal has been rightly discarded by the trial Court. The manner of receiving acid burn injuries by Raj Kishan and Parveen Kumar, corroborated with medical evidence, proves the case of the prosecution beyond reasonable doubt. While throwing acid some drops might have fallen on the person of accused. So, the injuries on the person of Raj Kishan and Parveen Kumar have been duly proved. Even Babu Ram in the cross examination has stated about the motive of the occurrence that on 2.5.1996, Raj Kumar slapped Parveen Kumar and Babu Ram had disclosed this fact to Raj Kishan. As per medical evidence 55% to 60% acid burn injuries were received by Raj Kishan. So, the manner described by Babu Ram and Yashpal does not inspire confidence. Yashpal has stated that acid was lying in the container near the dairy of Raj Kumar. When Raj Kishan wanted to pick up that container with acid he slipped and acid fell on his person. The manner in which he has deposed about the occurrence is not remotely possible. Babu Ram has stated that both sides wanted to grab the container made of battery containing acid so as to pour on each other. The acid fell on the person of Raj Kishan and also on the person of Raj Kumar. That manner of occurrence is not possible. Otherwise also, the accused has failed to explain so much variance in the statement of DWs Babu Ram and Yashpal, as discussed above. Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -7-
Learned counsel for the appellant has further submitted that ingredients of offence under Section 307 IPC are not made out against the appellant. According to the prosecution, the acid burn injuries on the person of Raj Kishan have been declared dangerous to life on the basis of report of the Surgeon. It is submitted that said Surgeon has not been examined by the prosecution. It is further submitted that the Division Bench of Delhi High Court in authority reported as Kapoor Singh Rana vs. State of Delhi 2006 (1) RCR (Criminal) 943 has held that where the accused poured acid on the face of victim causing loss of her eyes and disfigurement, in that case, offence under Section 326 IPC is made out and offence under Section 307 IPC is not made out. In that authority it has been further laid down that when a person throws acid on the face of some other person, the intention behind the act is to cause disfigurement rather than to cause death. In that case, the Division Bench acquitted the accused under Section 307 IPC.
It is further submitted that this court in authority reported as Swinder Singh and another vs. State of Punjab 2007 (3) RCR (Criminal) 581 has held that where the injuries are collectively declared dangerous to life but none of the individual injury is dangerous to life, in that case, offence under Section 307 IPC is not made out and at the most offence under Section 326 IPC is made out. In that case, offence relates to 19 years back and the sentence in that case was reduced to 3/4 weeks by ordering the accused to pay compensation to the victim. It is submitted that compensation to the Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -8- tune of `50,000/- has already been ordered by the trial Court, out of which `25,000/- has already been paid. So, it is submitted that the appellant has already undergone incarceration for a period of 2 years, 23 days and as such his sentence be reduced to the period already undergone. It is further submitted that injuries on the person of Parveen Kumar have already been declared simple in nature by PW-1 Dr. Bawa Singh.
Learned State counsel has supported the judgment of the trial Court. It is submitted that PW-1 Dr. Bawa Singh declared the injuries dangerous to life. There were acid burn injuries upto 55% to 60%. So, the accused has been rightly convicted under Sections 307 and 326 IPC, by the trial Court.
I have considered the submissions made by counsel for both the sides and have also gone through the record of the case in respect of the above noted contention.
The moot point for determination in this case is whether the offence under Section 307 IPC is made out against the appellant or not. The answer to that question has to be given after re-appraisal of the medical evidence on the file. The explicit reliance in respect of offence under Section 307 IPC made by trial Court in respect of endorsement Exhibit PD/1 Dr. Bawa Singh has stated that opinion can be given after Surgeon report, which fact is mentioned in endorsement Exhibit PE/1 dated 13.5.1996. Vide endorsement Exhibit PF/1 the injuries on the person of Parveen Kumar have been declared simple in nature on 19.6.1996. On 22.5.1996 vide Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -9- endorsement Exhibit PD/1 the doctor has opined that since injuries are more than 40%, and as such they are dangerous to life. The opinion of the same doctor on 13.5.1996 was that he can tell about the nature of injures only after going through the Surgeon report. The opinion given on 22.5.1996 vide which the injuries have been declared dangerous to life, there is no mention of the fact that he has gone through the report of the Surgeon. Strange enough, that the said Surgeon has not been examined by the prosecution. The Division Bench of Delhi High Court in Kapoor Singh Rana's case (Supra) has held that where the acid is thrown on the face of someone, the intention behind the act is to cause disfigurement rather than to cause death. In the said case, the accused poured acid on the face of the victim causing loss of eyes and disfigurement. In that case, the Division Bench has held that offence under Section 307 IPC is not made out and offence under Section 326 IPC is made out. In the authority in Swinder Singh's case (Supra), this Court has held that where the medical evidence shows that all the injuries were collectively dangerous to life but no individual injury has been declared dangerous to life, in that case offence under Section 307 IPC is not made out.
The appellant before the trial Court relied upon the authority reported as Jagdish Mitter vs. State of Punjab and another 1991 (1) Recent Criminal Reports 594, in which it was held that in case of throwing acid on victim and rendering the victim blind would attract the provisions of Section 326 IPC and not provisions of offence Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -10- under Section 307 IPC. However, the trial Court observed the said ruling as distinguishable as the intention of the accused was to commit the murder of the injured. However, that finding is based upon conjectures and not on any evidence. So, considering all the circumstances, mentioned above, I am of the considered view that conviction of the appellant under Section 307 IPC is not made out and consequently, the appeal stands partly accepted and the accused stands acquitted under Section 307 IPC.
Now reverting to the quantum of sentence. As per the conviction slip, the appellant has already undergone incarceration for a period of 2 years and 23 days. Raj Kumar, while making statement under Section 313 Cr.P.C. on 23.2.1998, has given his age as 20 years. So, he was just above 18 years at the time of occurrence. The occurrence relates to more than 17 ½ years back.
So, considering all the circumstances mentioned above, the sentence of the appellant under Section 326 IPC stands reduced to the period already undergone. However, keeping in view the nature of acid burn injuries to the extent of 55% to 60%, as stated by the doctor, the compensation stands enhanced to Rs. 1 Lac instead of `50,000/- awarded by the trial Court. An amount of `25,000/- is stated to have already been deposited. The remaining amount of ` 75,000/-, shall be deposited within two months from today and on realisation the same shall be paid to the injured Raj Kishan. In case of default of payment of amount of `75,000/- within two months, the appellant shall undergo the sentence under Section 326 IPC as Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document Crl.A.No. S-1527 SB of 2003 -11- awarded by the trial court.
The appeal stands disposed of accordingly.
A copy of the judgment be sent to the trial court, for compliance.
( K.C. Puri ) 7.11.2013 Judge chugh Chugh Banita 2013.11.15 15:01 I attest to the accuracy and integrity of this document