Delhi District Court
State vs Pardeep on 6 October, 2023
IN THE COURT OF RISHABH KAPOOR,
METROPOLITAN MAGISTRATE-05 NORTH WEST
DISTRICT, ROHINI COURTS: DELHI
State Vs. : Pradeep
FIR No : 612/2008
U/s : 326 IPC
P.S. : Mangol Puri
JUDGMENT:
1. Criminal Case No. : 533273/2016
2. Date of commission of offence : 06.12.2008
3. Date of institution of the case : 23.07.2009
4. Name of the complainant : State
5. Name and parentage of accused : Pradeep S/o Sh. Harbans
Lal
6. Offense complained or proved : 326 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 12.09.2023 9. Final order : Convicted 10. Date of final order : 06.10.2023
1. The accused is facing trial for offence u/s 326 IPC. The genesis of the prosecution story is that on 06.12.2008 when the complainant namely Geeta was going towards her house, at Near Water Tank O-Block, Mangolpuri Delhi at around 9.30 PM, accused Pradeep had thrown some acid like substance on her due to which she became unconscious and was rushed to hospital. The police was informed about the incident vide DD No. 23A dated 06.12.2008 pursuant to which, police reached the hospital and obtained the MLC of complainant. The statement of complainant was recorded after the approval of concerned medical expert and pursuant thereto, the criminal law was set into motion vide registration of present case FIR. The investigation of the case thereafter began and the accused initially evaded the process of law due to which the NBWs were issued against him. The accused however, surrendered before the court and after his arrest on 17.04.2019, he was admitted to bail on 22.04.2019. As per the final opinion regarding the injury suffered by the complainant, same was opined to be grievous in nature. After completion of investigation the chargesheet was filed for conducting trial of the accused for offence u/s 326 IPC.
2. After taking cognizance of the offence, the copy of charge- sheet was supplied to accused in compliance of section 207 Cr.P.C. The arguments of charges were heard and charge for offence u/s 326 IPC was framed against accused. Accused pleaded not guilty and claimed and trial. Thereafter, prosecution evidence was led.
3. In order to establish guilt of accused, prosecution has examined six witnesses and thereafter prosecution evidence was closed. The statement of accused U/s 313 Cr.PC was also recorded after prosecution evidence, wherein all the incriminating evidences were put to accused. The accused did not lead any evidence in his defence. Final arguments were heard.
4. Ld. APP for State has urged that testimonies of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies.
5. Per contra, the Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubts. Also, prosecution has failed to examine any other eye-witnesses who were also present at the spot at the time of incident. The testimony of the complainant could not be relied upon as she being the sole witness of the present case (apart from police officials) had inimical relationship with the accused. Hence, benefit of doubt must be given to the accused.
6. I have heard the Ld. APP and Ld. Defence counsel and have also perused the case file.
7. Before proceeding further, it would be appropriate to discuss the testimonies of material prosecution witnesses in brief.
PW-1 Geeta is the complainant. She deposed that on 06.12.2008 at about 8.45 PM while she was coming from her workplace at Moti Nagar and when she reached near Senior School Water Tank, accused Pradeep was already standing there with a glass container in his hand. She identified the accused in Court and further deposed that at that time, accused reached near her and threw acid on her face due to which it was totally disfigured. Thereafter, she moved to her house and became unconscious. She further stated that her husband and children took her to SGM hospital where police recorded her statement. She stated that she was referred to Safdarjung Hospital where she was medically treated and was advised for face surgery, which could not be done due to financial constraints. She further stated that prior to incident, accused wanted to enter into illicit relationship with her to which she refused and the accused threatened to disfigure her face. During her cross-examination, she stated that accused was known to her about 2-3 years before the incident and she had left the factory in which the accused was also working in the year 2007. She further stated that after leaving the factory, accused used to chase her and she also informed said instances to her husband. She stated that she never talked with the accused during the time when she was working with him in the factory before year 2007. She further stated that on the day of incident, accused was hidden behind the dustbin and when she was at a distance of 10-15 meters from the dustbin, accused came out from behind and threw acid on her face from the glass bottle which he was having with him. She stated that no public person was present at that time and it was night time. She further stated that IO inquired from her about the place of incident after which her husband alongwith IO went to spot. She denied that she has falsely implicated accused as she was forced to leave the factory in year 2007 after the complaint of accused. She denied that accused had not thrown acid on her face.
PW-2 Dinesh is the husband of complaint, who deposed that he does not remember about the date, month and year of incident but it was around 8.30 PM when he called his wife to know where she has reached and she informed that she was near water tank. Thereafter, on reaching home he found that his wife was covering her face with hands and was crying and when he removed her hands, he saw her totally disfigured face due to which he became unconscious. He further deposed that he took his wife to SGM Hospital and she informed to him that accused Pradeep had thrown acid on her face. He also identified accused in Court. This witness was also encountered with questions in nature of cross-examination by Ld. APP for State and during said examination, he admitted that the date of incident was 06.12.2008 and that prior to incident, accused and his wife were working together in a factory and accused used to ask favors and wanted to make illicit relationship with his wife. He further deposed that his wife left the job but accused used to follow and harass her and also that prior to the date of incident, the accused threatened his wife to disfigure her face in case she did not succumb to his wishes. During his cross-examination by Defense Counsel, he admitted that on the date of incident, he was working in a factory which was about 5-10 minutes away from his home and his duty hours were from 9.00 AM to 9.00 PM. He stated that the duty hours of his wife were also from 9.00 AM to 9.00 PM but she used to work overtime for 1-2 hours. He stated that the factory of his wife was at distance of 40-45 minutes from his house. He deposed that on the date of incident, when he called his wife at about 8.30 PM, she informed that she was on her way to home alongwith 2-3 ladies. He stated that those ladies were not working with his wife and he had also told the said facts to the IO. He further stated that his wife came to the house after 5- 10 minutes of the incident and prior to that, one more person came there and informed him about the incident. He further deposed that he went to spot to bring his wife at home and at that time, he was not accompanied by that person who informed him about that incident. He admitted that in 2004, mother of accused had given a complaint against him and his wife in Police Station and at that time, the accused and his wife used to work in the same factory. He denied that his wife was having unlawful relations with accused. He also admitted of having visited the house of accused alongwith his wife in year 2004 but denied that said visit was made for threatening the accused. He denied that he alongwith his wife has falsely implicated the accused as she was forced to leave the factory due to complaint made against her by the accused in year 2004.
PW-3 Ct. Visheshwar deposed that on 06.12.2008, while he was posted as Constable at PS Mangolpuri, he received DD entry no. 23A at about 9.30 PM and thereafter he alongwith IO/SI Jiya Ram went to the hospital where injured Geeta was found. The doctor opined her to be unfit for statement after which IO prepared rukka on the basis of DD entry and sent him to Police Station for registration of FIR. He further deposed that after registration of FIR he went to hospital and handed over copy of FIR and original rukka to IO.
PW-4 SI Jai Prakash deposed that on 17.04.2009, SHO marked the surrender letter of accused Ex. PW-4/A to him and also handed over case file to him. Thereafter, accused Pradeep surrendered before court of Sh. Vishal Singh, Ld. MM Rohini Courts and after making inquiry from him, he was formally arrested vide arrest memo Ex.PW-4/B, the personal search of accused was thereafter conducted vide memo Ex.PW-4/C and his disclosure statement Ex. PW-4/D was also recorded. During his cross-examination, he denied that he had recorded the disclosure statement of accused as per his own wish and not as per the version of accused.
PW-5 HC Sanjeev is a formal witness, who deposed that on 06.12.2008 at about 10.45 PM, on the basis of rukka brought by Ct. Visheshwar, he registered FIR No. 612/2008 Ex. PW-5/A vide endorsement on rukka Ex. PW-5/B. PW-6 Dr. P.C. Prabhakar is the Medical Officer, who was deputed to depose on behalf of Dr. Sanjay Kaushik with respect to MLC No. 15376 of patient Geeta. He deposed that Dr. Sanjay Kaushik had left the hospital and his whereabouts are not known. He identified the handwriting and signatures of Dr. Sanjay Kaushik stating that he has seen him writing during the course of his duty. He proved the MLC Ex. PW-6/A bearing the signatures of Dr. Sanjay Kaushik at Point A, B & C. The accused also admitted the MLC No. 15376/2008 of patient Geeta vide his separate statement recorded on 20.02.2018.
It is a matter of record that IO/SI Jiya Ram could not be examined in the present case on account of his health conditions and was accordingly dropped from the list of witnesses on 10.05.2022.
This is the entire prosecution evidence on record.
8. Having discussed the testimonies of prosecution witnesses, it would be prudent to discuss the legal position involved in the present case.
LEGAL PROVISIONS INVOLVED The present case involves offence U/s 326 IPC. It is pertinent to point out that even though the allegations leveled against accused suggests about commission of an act of acid attack which is catered to under the provisions of Section 326A IPC. However, it is pertinent to mention that as the provisions of Section 326A were incorporated in Indian Penal Code vide Act 13 of 2013 w.e.f 03.02.2013 and prior thereto, there was no separate provision under law dealing with the acid attack cases, therefore, prior to the said amendment, the offence involving acid attacks was dealt with under Section 326 IPC. Therefore, the present discussion would be limited to the extent of provisions of Section 326 IPC and other ancillary provisions of the code.
Section 322 IPC provides for the offence of voluntarily causing grievous harm which an offence punishable u/s 325 IPC. It reads as under:
"322. Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind."
"Grievous hurt" is defined in section 320 IPC in the following manner:
"Grievous hurt.--The following kinds of hurt only are designated as "grievous":-- (First)-- Emasculation.
(Secondly)--Permanent privation of the sight of either eye.
(Thirdly)-- Permanent privation of the hearing of either ear, (Fourthly)--Privation of any member or joint. (Fifthly)-- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly)-- Permanent disfiguration of the head or face.
(Seventhly)--Fracture or dislocation of a bone or tooth.
(Eighthly)--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
A bare reading of the provision enshrined in section 322 IPC clearly suggests that the person causing hurt must have the intention or knowledge to cause grievous hurt and the hurt which is caused in consequence must also be grievous in nature as defined in section 320 IPC. It is not sufficient that the hurt which is caused is "grievous" if there is no prior intention or knowledge to cause grievous hurt. At this stage, reference can be taken from the decision of the Hon'ble Bombay High Court in the case of Mushirkha Bashirkha Musalman vs State of Maharashtra 1982 SCC Online Bom 266 wherein while discussing the scope and applicability of section 325 IPC, it held the following:
"The Judge is not to trouble himself with seeking for direct proof of what the offender thought was likely to happen, but is to infer the nature of his act, taking him to have intended grievous hurt, or at least to have contemplated grievous hurt as likely to occur, when he did what everybody knows is likely to cause grievous hurt, and the more certainly drawing this conclusion where there is evidence of previous enmity against the party who was suffered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensure from it, then although grievous may unexpectedly have ensued, it would be his duty to convict the offender of simple hurt only. A person can be convicted of grievous hurt only when the result and the intention correspond, or when grievous hurt has been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. Though grievous hurt may be caused in an assault, it does not at all follow that the person who assaulted is guilty of causing grievous hurt under section 325 of the Indian Penal Code. A person is only liable under section 325 of the Indian Penal Code if he voluntarily cause grievous hurt and voluntarily causing hurt" according to section 322 means if he intends to cause grievous hurt or knew himself to be likely to cause such hurt."
The above-mentioned ratio was reiterated by the Hon'ble Gujarat High Court in the case of Rabari Varva Jesang vs State Of Gujarat 1984 SCC OnLine Guj 68 wherein it was held that:
"Courts should not overlook the act itself. In considering the act not only the result but knowledge or intention is to be considered. If the act was such that nothing more than simple hurt could reasonably be thought likely to ensue from it, then, although grievous hurt may unexpectedly have ensued, it would be Court's duty to convict the offender of simple hurt, judging that grievous hurt was not in his contemplation; for, according to Section 322 of the Indian Penal Code, a person can be convicted of grievous hurt only when the result and intention correspond or when grievous hurt had been suffered from an act which was intended to cause grievous hurt, though it may be of a different kind. In the instant case, from the act of the petitioner-accused intention of causing grievous hurt cannot be inferred. In view of this, the conviction of the petitioner-accused for the offence under Section 333 of the Indian Penal Code requires to be set aside."
Hence, conjoint reading of the provision enshrined in section 325 IPC and the above-mentioned decisions of the Hon'ble Courts enlightens that if the grievous hurt is caused to the victim due to the act of assailant, he can be convicted for causing grievous hurt u/s 325 IPC only if he either intended to cause grievous hurt or had the knowledge (while doing the said act) that grievous hurt could be ordinarily caused. If intention/knowledge is missing then the accused cannot be convicted u/s 325 IPC even if grievous hurt is caused due to his act. He can then be convicted for causing simple hurt punishable u/s 323 IPC.
When the grievous hurt is caused by dangerous means or weapons, it is punishable u/s 326 IPC which reads as under "326. Voluntarily causing grievous hurt by dangerous weapons or means--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
The title of section 326 IPC uses the expression 'dangerous weapons'. However, the body of the section illustrates what these weapons are. This description covers even instruments which are not designed for use as weapons, but are capable of being used as weapons. Also, this section includes causing of grievous hurt by dangerous means. The 'dangerous means' contemplated under this section are fire or any heated substance, poison, corrosive substance, explosive substance or deleterious substance. However, as held by the Hon'ble Supreme Court in the case of Mathai vs. State of Kerala (2005) Cr LJ 898 (SC) , it is pertinent to note that whether a particular weapon comes under the category of 'dangerous weapons/means' or not depends upon various factors. Therefore, no generalization can be made about what constitutes 'dangerous weapon/mean'. It needs to ascertained in light of the facts of each case. Further, under section 326 IPC, it is not the actual nature of the injury caused but the manner in which it is caused, which is relevant.
FINDINGS
9. As per the case of prosecution, the accused Pradeep had thrown some acid like substance over the complainant due to which she has sustained grievous injuries. In order to bring home the culpability of the accused in the present case, the prosecution has primarily relied upon the testimony of the complainant (who was the only eye-witness) and as well as the testimony of her husband examined as PW-2.
10. During the final arguments, Ld. Counsel for the accused had submitted that the complainant was the interested person in the present case who was already having previous disputes with the accused on account of a complaint made by him leading to ouster of complainant from her employment. Other witness i.e. the husband of complainant was not an eye witness and rather his testimony is merely hearsay in nature. It is also argued that the prosecution has also failed to examine any public witnesses in the present case who according to PW-2 were also present at the time of alleged incident. It has also been argued that the accused was not present at the spot of occurrence during the incident rather he was present at the place of his employment i.e. his factory where he used to work. Arguing further, Ld. Counsel for accused has also contended that the fact that complainant has failed to give any police complaint regarding the previous acts of stalking and harassment by the accused is also self-explanatory that she has concocted a story to falsely implicate the accused. It has also been argued that there are several discrepancies in the statement of complainant and her husband which sufficiently explains that the prosecution has not proved the guilt of accused beyond reasonable doubts and as such he deserves to be acquitted for the alleged offence.
11. Having discussed the testimonies of the prosecution witnesses, the position of law with respect to offence U/s 326 IPC and the defences raised on behalf accused, now let us deal with the merits of the case in the light of the defences raised on behalf of the accused alongwith the appreciation of evidence as led by the prosecution.
For the sake of brevity, the defences raised on behalf accused are herein-after dealt with separately under different headings, which are as under:-
I). NON-EXAMINATION OF PUBLIC WITNESSES At the outset, in so far as the argument of Ld. Counsel for the accused regarding conviction of the accused based on sole testimony of complainant and her husband is concerned, it should be noted that the said argument does not hold any ground.
It is a settled proposition of law that an accused can be convicted based on the testimony of solitary witness if the same is unblemished and gains the confidence of the Court. Section 134 of the Indian Evidence Act clearly provides that no particular number of witnesses is required to establish a case. It is the quality of the evidence and not the quantity which is to be seen.
At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Ramesh Krishna Madhusudan Nayar vs. State of Maharashtra 2008 Crl. LJ 1023 , wherein the Hon'ble Apex Court had upheld a conviction under Section 302 IPC based on the sole testimony of a witness. The Hon'ble Court has held that "on the basis of solitary evidence conviction can be maintained. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained."
The above discussed principle was reiterated (albeit with certain qualifications) recently by the Hon'ble Supreme Court in the case of Amar Singh vs. State (NCT OF Delhi) Criminal Appeal No. 335 of 2015 decided on 12th October 2020 wherein it was held that conviction can be based on sole eye witness testimony only if he is wholly reliable. But if there are doubts about the testimony then the Courts will insist on corroboration. Relevant extract of the judgment is reproduced below:
"16. Thus, the finding of guilt of the two accused appellants recorded by the two Courts below is based on sole testimony of eye witness PW-1. As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise"
Hence, in view of the above discussion, it becomes very clear that an accused can be convicted based on the sole testimony of witness/complainant. However, the said testimony must be unblemished and wins the confidence of the Court. If there is any contradiction or doubt over the reliability of the witness, then the Courts can insist on corroboration.
In the instant case, the prosecution has primarily relied upon the testimony of PW-1 i.e. the complainant in order to bring home the culpability of the accused. Other crucial witness examined by the prosecution was the husband of complainant. No other public witness or other eye-witness was examined by the prosecution. PW-1 in her testimony has supported the case of prosecution. During her examination-in-chief, she gave a detailed account of the incident which had taken place. She inter-alia stated that prior to the incident, accused had extended explicit overtures to her for entering into an illicit relationship, which were refused by her and due to which, the accused extended threats to disfigure her face. She has further narrated that on the date of incident, the accused was waiting for her near the water tank with the glass container having acid and upon seeing her, he threw the acid upon her due to which her face got disfigured and she became unconscious after reaching her house.
Perusal of the above testimony of the complainant would clearly show that she had completely supported the case of prosecution.
Besides, the husband of complainant examined as PW-2 has also supported the story of prosecution to the extent that his wife was being harassed by the accused prior to the incident and the unwanted demands for sexual favors was made by him to his wife, upon refusal of which he became inimical towards her. He also coherently narrated that even after leaving the job, accused used to follow the complainant and also extended the threats to disfigure her face prior to the day of incident, in case she does not succumb to the wishes of accused.
Ld. Counsel for accused, during final arguments, had highlighted certain contradictions in the testimonies of the complainant and her husband examined as PW-2. He had stated that as per the version of the complainant, there was no public person present at the time of alleged incident, whereas, PW-2 has narrated that at the time of incident, complainant was accompanied by 2-3 other ladies. It was also pointed out that PW-2 in his testimony narrated of being informed about the incident by one person, but the said persons were never examined as witnesses by the prosecution. It has also been pointed out that PW-2 has even failed to mention about the date of incident during his examination-in-chief and was also declared hostile by the prosecution. It has also been pointed out that even the version of PW-2 is also contradictory in nature as during his examination-in-chief he deposed of having seen his wife in the disfigured state when he reached home but during his cross- examination, he deposed of having himself brought his wife to home after the assault inflicted by the accused.
It is pertinent to mention that while the husband of complainant examined as PW-2 could not initially disclose the exact date of incident, however, during his cross-examination by Ld. APP for State, he has coherently admitted about the date of incident. Even otherwise also, the failure on the part of said witness to mention about the exact date of incident during his testimony is not fatal to the case of prosecution nor would automatically discredit him. It cannot be ignored that between the date of examination in chief and cross examination of complainant and her husband, there was a time gap of 4 years. It is also pertinent to mention that the alleged incident ensued on 06.12.2018 and between the examination-in-chief of the above- named witnesses and their cross-examination, there was a time lapse of five years and nine years, respectively. Therefore, it would be very natural for any person to not remember the exact date of incident after expiry of such long time span. Further, in so far as the contradictions between the testimony of complainant and her husband examined as PW-2 with respect to the presence of other public persons during the time of incident is concerned, it is pertinent to mention that in her testimony, the complainant has ruled out about presence of any other public persons at the time of incident explaining that it was night time. The version of PW-2 that the complainant was accompanied by 2-3 other ladies also does not find any support from the entire case record as it was never discovered during the investigation that any other public persons were also present during the time of incident. It is also worthwhile to mention here that during her testimony as PW-1, complainant has also narrated that immediately after rushing to home after the assault by accused, she became unconscious. The version of PW-2 is also consistent to the extent that after reaching home, when he saw the complainant in a disfigured state, he also became unconscious. It is natural on the part of any person to become unconscious after suffering such a grave assault. It is also natural that when a close family member or relative is seen by a person in a disfigured state due to the gruesome act of acid attack, he/she may also become unconscious or insentient. Appreciating the fact that PW-2 became unconscious within a short time span after the incident, therefore the possibility cannot be ruled out that he may not be in a stable state of mind when he acquired knowledge about the incident and hence he may also have misconceived the fact that he was informed by some other person about the incident or may not correctly remember that the complainant informed him that she was accompanied by 2-3 other ladies at the time of incident. The above pointed contradictions does not appear to be material enough to discredit the entire testimony of the complainant and PW-2. I cannot remain oblivious of the fact that the complainant has sustained grievous injuries due to the incident and was also advised for surgery due to disfiguration, hence, it would be very natural to have minor contradictions in the testimony of the complainant.
(ii) HISTORY OF DISPUTES BETWEEN PARTIES Further, it is an admitted fact that the relationship between the complainant and accused was not cordial. The complainant was stated to be ousted from her job on account of some complaint made by the accused against her. The version of prosecution is rather to the extent that the accused used to stalk the complainant and harass her in connection with his demands for undue favors for illicit relationship with the complainant. Pertinently, during her examination, the complainant has coherently deposed that she was harassed by the accused since the time when he used to work in the same factory with the complainant, by extending the demands for undue sexual favours. The complainant was also supported in her version through the testimony of her husband examined as PW-2. Both complainant/PW-1 and her husband/PW-2 have also narrated that just a day prior to the incident, the accused again asked for sexual favours from the complainant and upon her denial, he had extended the threats to disfigure her face. Even though during his testimony as PW-2, the husband of complainant has admitted that the mother of accused had given a complaint against him and the complainant in the year 2002 and also that he alongwith complainant and one of his friend had visited the house of accused in year 2004. These admissions on the part of PW-2 hints about some previous history of disputes inter-se the parties. Dealing with this aspect of the matter; the Hon'ble Supreme Court in the case of Dalip Singh & Ors. vs. State of Punjab, AIR 1953 SC 364 has discussed the position of a witness who has inimical relationship with the accused. Relevant extract of the judgment is reproduced below:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
This aspect was also dealt by the Hon'ble Orissa High Court in the case of State of Orissa vs. Madhusudan Sahu And Ors. 2007 CriLJ 440 wherein it was held as under:
"It is to be borne in mind that the parties involved in the case are inimical to each other and large number of litigations is going on between them. While the accused persons propagate the plea that because of this enmity, they have been falsely implicated, the prosecution has come up with the suggestion that the attack on P.W. 6 was carried because of the enmity. Enmity between the parties is a double-edged weapon. The effect of enmity is to be considered in the case according to the circumstance and evidence available on record. What is settled is that once enmity exists between the parties, the evidence adduced by the parties are to be scrutinized with great care and caution and every mitigating circumstance has to be given importance."
Similar observation was made by the Hon'ble Delhi High Court in the case of Sunil Kumar vs. State Crl. Appeal No. 886 of 2012 decided on 3rd March 2012 wherein the Hon'ble Court has held that if parties are on inimical terms, then each and every piece of evidence available on record has to be scrutinized and analyzed carefully.
In the instant case, the prosecution is primarily relying upon the testimony of complainant PW-1 and her husband PW-2. No other independent witnesses (except official witnesses) were examined by the prosecution. While there is no impediment in relying upon the testimony of complainant PW-1, however, since, it has come to fore that the complainant, her husband and accused were having history of some previous disputes between them, therefore, it would be prudent to carefully scrutinize and analyze the testimony of PW-1 and PW-2.
As discussed in the preceding part of this judgment, the complainant in her testimony has completely supported the case of prosecution. The fact that the complainant had sustained grievous injuries due to the incident could also be corroborated from her MLC no. 15376 which was also admitted by the accused vide his statement recorded on 20.02.2018. The record of MLC is Ex. PW-6/A. Perusal of the MLC would show that the complainant had suffered superficial to deep burn injuries due to acid at face, right eye, right forearm and neck and she was also advised to undergo surgery.
Also, it should be noted that the fact that the complainant had suffered grievous burn injuries could also be corroborated from the statement of Dr. P.C. Prabhakar examined as PW-6.
It is all the more pertinent to mention that the nature of injuries suffered by the complainant are grave and serious enough to rule out that same may have been self inflicted injuries. The coherent testimony of complainant to the extent that she was attacked by the accused, who threw acid upon her leading to the grievous injuries coupled with the conclusion given by the medical expert in the MLC Ex. PW-6/A leaves no room for doubt that the injuries in question were suffered by the complainant due to acid attack. It is highly unbelievable that any person may inflict the injuries on vital parts of his/her own body such as face, eyes and neck and that too with highly dangerous substance like acid, just to settle some previous scores with any other person and to falsely implicate the said person. The motive on the part of accused which is also a crucial aspect to ascertain the intention behind the crime has also been sufficiently established by the prosecution. The testimony of complainant and PW-2 as discussed in the preceding part of this judgment clearly elaborates the motive of accused which was nothing but the lust on his part to establish the sexual relationship with the complainant and upon denial of same, to seek the vengeance from her. The imputation of threats by the accused qua disfiguring the face of complainant just a day prior to the incident upon her denial to accede to the unlawful demands of accused, also sufficiently establish the necessary motive behind the commission of the alleged offence by the accused. These crucial facts clearly corroborate the testimony of the complainant.
(iii) NON-FILING OF ANY COMPLAINTS BY COMPLAINANT AGAINST ACCUSED WITH RESPECT TO PREVIOUS ACTS OF HARASSMENT The another defence which has been raised on behalf of accused is that the version of complainant cannot be believed that the accused used to harass her since year 2007 as she has not filed any complaint against the accused at any time prior to the alleged incident. In this regard, it becomes pertinent to mention that the delay in a cases of sexual assault cannot be equated with a delay in cases involving other offenses since several factors weigh on the mind of the victim and member of her family. It is a sad reality that victims of sexual assault often fear of their reputation, discouraging them from seeking justice. The trauma, anxiety about the family's honour and social stigma are factors that a victim of sexual assault has to consider before taking any action against the perpetrator. One cannot remain oblivious to fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim and delay in lodging the First Information Report in a case of this nature is a natural phenomenon.
The case of Shreekant Sharma v. State of West Bengal CRR 712 of 2022 decided on 12th July, 2023 is a key judgment of the Hon'ble Calcutta High Court that highlighted the discouragement to file an FIR that victims of sexual assault experience, often leading them to not seek justice.
The case of Satpal Singh vs State of Haryana (2010) 8SCC 714 was relied upon to reiterate that:
"13. In a rape case the prosecutrix remains worried about her future. She remains in traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of society's attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. Family remains concern about its honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences. (Vide Karnel Singh Vs. State of M.P. AIR 1995 SC 2472; and State of Punjab Vs. Gurmeet Singh & Ors. AIR 1996 SC 1393)
15. However, no straight jacket formula can be laid down in this regard. In case of sexual offences, the criterial may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that "ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon" [vide Satyapal Vs. State of Haryana AIR 2009 SC 2190]"
Additionally, the Court reminded the parties that in the case of State of Himachal Pradesh Vs. Prem Singh AIR 2009 SC 1010 it was held that "So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences." In a tradition-bound country like India, multiple factors are considered by the victim and her family before filing an FIR but it would be quite unfair to quash an FIR basis any delay caused by such consideration.
The Hon'ble Calcutta High Court also relied on the decision of the Hon'ble Supreme Court in the case of Tulsidas Kanolkar v State of Goa (2003) 8SCC 590 wherein it was held that, "delay per se is not a mitigating circumstance for the accused when accusations of rape are involved." Delay in filing an FIR cannot be taken as a 'ritualistic formula' for throwing away the case or for casting a doubt on the authenticity of the prosecution's claims.
Herein it also becomes pertinent to mention that in year 2018, #metoo movement shook the entire world with the grim reality that even in this modern era, the victims of sexual assaults and harassment are reluctant to report the matters to the authorities. This movement gave a supporting hand to the suppressed victims of sexual offences who could not report the incidents regarding the assaults committed against them on account of various factors including societal fear. This fact is very much relevant to take judicial notice of U/s 57 of Indian Evidence Act for logically dealing with the contentions in hand.
In the light of the discussion made above, I am of the considered view that the testimony of the complainant which is otherwise coherent and convincing enough attributing the guilt on accused, cannot be negated merely due to the reason that she has failed to file any police complaint against the accused at any time prior to the alleged incident when she was stalked or harassed by the accused. The entire material on record suggest that the complainant was working in a factory and was a married lady having three children. The overall evidences on record suggests that complainant belongs to a lower-middle strata of society. Therefore, it was natural on her part to shy away from reporting the matters to the police regarding the alleged acts of stalking and demands for sexual favours made by the accused on account of her own reputation being also at a stake. The complainant has narrated about the acts of accused to her husband/PW-2, (as deposed by PW-2 himself) and that was all the complainant could do considering her societal background, means available to her and within her reach. In such facts and circumstances, her testimony cannot be rejected merely on account of her not reporting the matter to police on previous occasions.
(iv) DEFENCE OF ALIBI BY ACCUSED The accused has also raised plea of alibi in his defence by raising contentions that during the time of incident, he was rather available at his work place and not at the spot of alleged occurrence. Herein, it is pertinent to mention that the plea of alibi is used when the accused takes the plea that when the occurrence took place he was elsewhere. In such a situation the prosecution has to discharge the burden satisfactorily. Once the prosecution is successful in discharging the burden, it is incumbent on the accused who takes the place of alibi to prove it with absolute certainly. An alibi is not an exception envisaged in the IPC or any other law. It is a rule of evidence recognized by Section 11 of the Indian Evidence Act which deals with relevancy of facts inconsistent with fact in issue. However, it cannot be the sole link or sole circumstance to bare conviction. When one fact is necessary to the hypothesis of the guilt of the accused, but strikingly absent in the chain of circumstantial evidence, the prosecution case certainly will fail. Because, an alibi the relevancy of which is totally inconsistent with hypothesis that the accused had committed an offence.
The discussion made in the preceding part of this judgment suggests that the testimony of prosecution witnesses sufficiently establishes the presence of accused at the spot of incident during the relevant time and hence now the onus rests upon the accused to substantiate his presence elsewhere.
When the accused took the plea of alibi the burden of proof lies on him under section 103 of this Act.
The provisions of Section 11 and Section 103 Indian Evidence Act deals with the plea of alibi. These two provisions are produced hereinafter for a ready reference.
Section 11 of the Indian Evidence Act, 1872: "When facts not otherwise relevant become relevant: facts not otherwise relevant are relevant (i) if they are inconsistent with any fact in issue or relevant fact, (ii) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable."
Section 103 of the Indian Evidence Act, 1872: According to this, "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
In case titled as Pappu Tiwary vs. State of Jharkhand Appeal No. 1492 of 2021 decided on 31st January, 2022 Hon'ble Supreme Court held that "The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives."
In present case, there is no evidence led by the accused to establish his presence elsewhere at the time of incident nor there is any narration by the accused in statement U/s 313 Cr.PC. about the place where he was present at the time of incident. He has only made a denial simpliciter about the factum of causing the alleged assault on complainant by throwing acid over her. Apart from his denial simpliciter, the accused has not raised the plea regarding alibi in his statement U/s 313 Cr.PC. nor has led any evidence to such extent in his defence. Therefore, it can be safely concluded that the accused has failed to discharge the onus placed upon him as per section 103 of Indian Evidence Act. Therefore, the contentions raised on behalf of accused to such extent are also rejected.
CONCLUSION AND VERDICT
12. In view of the foregoing discussion, it would clearly appear that the accused has voluntarily caused grievous hurt to the complainant by throwing acid on her. The accused had the knowledge that throwing acid on vital body parts of the complainant i.e. face, eyes and neck would likely to cause grievous injury to her. By throwing the acid in such a manner, grievous hurt including disfiguration of face was indeed caused to the complainant. Therefore, I am of the considered view that the prosecution has successfully established all the essential ingredients of an offence punishable u/s 326 IPC. Accused not only had the knowledge that the grievous hurt would be caused to the complainant when acid would be thrown on her rather grievous injury was indeed caused to the complaint. Hence, prosecution has successfully proved the guilt of accused in the present case beyond reasonable doubt.
Hence, accused namely Pradeep stands convicted for the offence punishable u/s 326 IPC.
13. Let accused be heard separately on point of sentence.
Announced in the open Court On 06th Day of October, 2023 (Rishabh Kapoor) MM-05 North West District Rohini Courts, Delhi.