Bombay High Court
The State Of Maharashtra vs Ankur Narayanlal Panwar on 12 June, 2019
Equivalent citations: AIRONLINE 2019 BOM 417, 2019 (2) ABR(CRI) 753, (2019) 4 BOMCR(CRI) 143, (2019) 6 MH LJ (CRI) 550
Author: Prakash D. Naik
Bench: B.P.Dharmadhikari, Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL CONFIRMATION CASE NO.3 OF 2016
The State of Maharashtra Petitioner
versus
Ankur Narayanlal Panwar
Respondent
WITH
CRIMINAL APPEAL NO.139 OF 2017
Ankur Narayanlal Panwar
Age 26 years, R/o.C/3,
BBMB, DESU Colony, Narela,
Delhi. Appellant/Accused
versus
The State of Maharashtra Respondent
Mr.A.M.Chimalkar, Special Public Prosecutor, with Mr.Siddharth
Jagushte and Tusshar Nirbhavne and Ms.P.P.Shinde, APP, for
Petitioner-State.
Mr.Trideep Pais, Mr.Vijay Hiremath, Ms.Anshu Raj Singh and Sanya
Kumar for respondent-accused.
CORAM : B.P.DHARMADHIKARI AND
PRAKASH D. NAIK, JJ.
Date of Reserving the Judgment : 28th March 2019
Date of Pronouncing the Judgment : 12th June 2019
JUDGMENT - (Per : Prakash D. Naik, J.) :-
1. This confirmation case is on the basis of death confirmation
reference made by Additional Sessions Judge, City Civil and Sessions
Court, Greater Mumbai, vide judgment and order dated 8 th
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September 2016 passed in Sessions Case No.311 of 2014. The
reference is made under sub-section (1) of Section 366 of Code of
Criminal Procedure, 1973.
2. The accused has also preferred an appeal challenging the order
of conviction and sentence. The appellant-accused has been
convicted for the offence punishable under Section 302 of Indian
Penal Code (`IPC') and sentenced to death and be hanged by the
neck till he is dead, subject to confirmation by Bombay High Court.
The accused is also convicted for the offence punishable under
Section 326-B of IPC and sentenced to suffer rigorous imprisonment
for five years and to pay fine of Rs.5,000/-, in default to suffer
rigorous imprisonment for six months. The accused is acquitted for
the offence punishable under Section 326-A of IPC.
3. The prosecution case is as follows :
(a) The victim Preeti Amarsingh Rathi hailing from Narela,
at Delhi, was selected as Nursing Officer in Military Nursing Services
held through short service commission. She was supposed to join
Naval office at Colaba, Mumbai as Second Lieutenant;
(b) On 1st May 2013 the victim boarded Garibrath Express
for Mumbai from Nizamuddin Station, Delhi along with her father
Amarsingh Rathi, her uncle Vinodkumar Dahiya and her aunt Sunita
Dahiya;
(c) On 2nd May 2013 they arrived in Mumbai. The train
reached Bandra Terminus at 8.05 am.. After the victim alighted from
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train and was proceeding along with Amarsingh Rathi, Vinodkumar
Dahiya and Sunita Dahiya, one person tapped her from back side.
When she turned back, the unknown attacker wearing scarf on his
face and cap on his head, plunged some liquid on her from one
container he was holding and fled from the platform. Her father,
maternal aunt and passerby also got spilt of liquid;
(d) Sameer Shaikh was a bottle picker at platform. He was
near the coach from which Preeti had alighted. As few drops fell on
him, he shouted by asking Salim @ Salman, another bottle picker
who was ahead, to catch the miscreant who threw the fluid. The
fluid started burning the skin as soon as it fell on the victim and
others;
(e) The father, uncle, and aunt of Preeti and other people
on platform sustained injuries out of the said spilt. Amarsingh Rathi
and Vinodkumar Dahiya immediately lifted Preeti and carried her to
Station Master's office. A memo was issued to take Preeti to Bhabha
Hospital. The victim was taken to Gurunanak Hospital with the
assistance of police constable. It was the nearest hospital. The
other injured were sent to Bhabha Hospital by Railway Police;
(f) The police drew spot panchanama of the spot of incident
shown by Sameer Shaikh after he returned from hospital. The plastic
dabba (container) was found on the spot with some left over fluid.
The fluid spread over on the ground and the soil, was collected with
the help of cotton swab. There were some burnt pieces of cloths. All
the articles were sealed and seized under spot panchanama;
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(g) After Amarsingh Rathi returned from hospital, he lodged
police report against unknown person and FIR No.36 of 2013 was
registered under Sections 307, 326-A and 326-B of IPC. Preeti was
not able to speak due to severe burns on her face and neck. Due to
lack of medical facilities for treatment and management, the victim
was referred to hospital having facility to manage her condition by
Gurunanak Hospital. She was taken to Masina Hospital. The
condition of Preeti was serious due to severe acid burns. The
treatment began for injuries;
(h) The police approached the victim at Masina Hospital to
record her statement but she could not speak. She could
communicate with her parents and doctors by writing on piece of
paper. The sketch of accused was drawn on the basis of description
given by the witnesses;
(i) On 4th May 2013 Pawan Kumar made a phone call to
sister of Preeti namely Tannu to make inquiry about the health of
Preeti. Amarsingh Rathi was informed about the same by Tannu.
The said information was provided to the investigating officer and
Pawan Kumar was suspected to be the perpetrator of crime. He was
arrested on 9th May 2013. After showing the sketch by scribbling on
paper, Preeti disclosed that the perpetrator may be Satyam Ankur or
Pawan Kumar;
(j) After Preeti was admitted in Masina Hospital, she
underwent surgeries as she had trachea-oesophageal fistula causing
hole in wind pipe and feed pipe. She was under continuous medical
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treatment by the team of doctors till 18th May 2013. Her condition
was deteriorating. On 18th May 2013 for her further treatment by
specialists, she was shifted to Bombay Hospital. She was
continuously on ventilator. In Bombay Hospital she was treated by a
team of specialist doctors. However, she succumbed to the injuries
after cardiac arrest on 1st June 2013. Due to death of Preeti, Section
307 was converted into Section 302 of IPC;
(k) Post mortem of the dead body was conducted by
doctors. Samples collected during the post mortem were sent to FSL
for CA and histopathology. After receipt of CA reports final cause of
death was opined as septicemia due to acid burn (unnatural). No
information was received to show that Pawan Kumar was involved in
the crime. The railway police were unable to find evidence showing
his involvement. Amarsingh Rathi made inquiries by himself and
found that Pawan Kumar was at Rohtak in State of Haryana at the
time of incident. He filed an affidavit before the Court stating that
Pawan Kumar was at Rohtak at the time of incident. Since
investigation was not progressing in proper direction, writ petition
was filed by Amarsingh Rathi and the investigation was transferred
to DCB, CID, Mumbai;
(l) During investigation carried out by DCB, CID, a team of
police officers was sent to Delhi to make inquiry with regards to
railway tickets of Preeti and her relatives. During inquiry with
relatives of Preeti i.e. Neetu Solanki, name of appellant-accused
appeared. When police approached him, he gave evasive answers to
the queries regarding his whereabouts on 1 st May 2013. Hence he
was brought to Mumbai on 17th January 2014. He was having burn
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injuries on his both hands. He was arrested and sent to J.J.Hospital
for medical examination to get information regarding old healed
scars on his fore arms. Those were found as caused by secondary
drops of acid. While he was in custody, his statement u/s 27 of
Indian Evidence Act was recorded. At his instance the place from
where he had obtained the acid was discovered. The seller of acid
witness Mukesh Bhargav informed that the accused had obtained the
acid sample from him on the ground that he had started business in
the name and style "Ankur Batteries". After arrest of Ankur Panwar
(appellant-accused), investigation gained momentum;
(m) The details of mobile phone of the accused were
collected. The statements of eye witnesses were recorded. The
statements of relatives of Preeti were also recorded. After arrest of
Ankur Panwar test identification parade (`T.I. Parade') was arranged
for his identification through eye witnesses. Sameer Shaikh, Salim
@ Salman Shaikh, Pawan Malviya and Vinodkumar Dahiya identified
the accused as the person who plunged the acid towards Preeti.
Vinodkumar Dahiya had seen him in the train at 4.00 am while the
accused was standing near toilet. He also had talk with him. At that
time the accused was holding bag. Sameer Shaikh identified the
dabba which was in the hands of accused. Mukesh Malviya
identified the accused in the T.I.Parade that he had given two kgs
sample of sulphuric acid. The words "Divya Pharmacy" and No.B-
56025 were embossed on the dabba. The statements of the
witnesses were recorded. It was revealed that the accused was in
love with the victim and he had informed his friends that he was
going to Mumbai for interview;
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(n) While Preeti was admitted in Masina Hospital, her cloths
and cloths of Sunita Dahiya were seized. The articles were seized
under spot panchanama and the cloths of Preeti and Sunita were
sent to FSL for CA. The CA report discloses presence of sulfuric acid
on the cloths of Preeti, in the articles seized from spot and in the
samples collected from body of Preeti. Ample evidence was collected
against appellant-accused. Pawan Kumar was discharged and charge
sheet was filed against appellant-accused before concerned Court.
4. Since the offence punishable u/s.302, 326-A and 326-B of IPC
being exclusively triable by sessions Court, the case was committed
to Sessions Court on 28th April 2014.
5. Plea of accused was recorded. The charge was framed by
order dated 21st August 2014 for the offences u/s 302, 326-A and
326-B of IPC.
6. The prosecution in support of its case has adduced the
evidence of 37 witnesses. After completing the evidence, on 18 th July
2016, statement of accused was recorded u/s 313 of Code of
Criminal Procedure. In the said statement the accused has stated
that he has some documents and wants to produce the same. He
was permitted to produce the documents. He contended that this is
a false case made against him on false allegations. In April-2013 he
returned home after his examination. On 27 th April 2013 he was in
Bhuvaneshwar. His ATM transaction shows his presence at Orissa.
He travelled from Bhuvaneshwar and boarded on 29 th April 2013 or
30th April 2013 by train Purushottam Express or Nilanchal Express
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and reached Delhi on 1st May 2013 or 2nd May 2013. He reached
home at 9 or 10 am. He do not know why he is involved in the case.
He had not given this information to police. He preferred an
application for taking documents on record as additional statement
u/s 313 of Cr.P.C on 21 st July 2016. On 12th August 2016, additional
statement of accused was recorded u/s 313 of Cr.P.C in respect to CA
report. He stated that he want to file some documents. The accused
through his advocate preferred an application for taking the
documents on record. It was stated that burn injuries were suffered
while he was working at Crown Plaza Hotel, Okhala, New Delhi
before incident. He was placed as a trainee with the said hotel
through school of hotel management. The copy of placement letter
and successful completion of training, degree certificate, were
annexed to the said application.
7. The Trial Court recorded findings that the prosecution has
proved that on 1st June 2014 Preeti died by homicidal death. The
prosecution also proved that the accused intentionally plunged the
acid on Preeti on 2nd May 2014 at Bandra Railway Terminus on
platform no.3 causing her death and committed murder punishable
u/s 302 of IPC. It was also held that the prosecution has proved that
the accused voluntarily threw acid with intention of causing burns
and caused burns to Amarsingh Rathi, Smt.Sunita Dahiya,
Smt.Sudeshna Kumari Singh and Sameer Shaikh and committed
offence punishable u/s 326-B of IPC. Whereas, it was held that the
offence u/s 326-A of IPC has not been proved.
8. The case of prosecution is based on ocular, medical,
circumstantial and forensic evidence. The trial court had categorized
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the evidence as; (i) eye witnesses; (ii) circumstantial evidence; (iii)
medical evidence and (iv) other evidence. PW-1 Vasudev Baberwal
is the panch witness for cloths of victim Preeti and her aunt Sunita
Dahiya. PW-2 Anand Sandhe is the panch witness in whose presence
packet was opened. One more packet was taken from inside. One
plastic box was inside, on which "Divya Pharmacy" was written on
bottme. PW-3 Mrs.Shreya Sawant is the sister in-charge at Masina
Hospital where Preeti and Sunita were treated. PW-4 Raju Yadav is
panch witness relating to the statement made by accused about the
place from where the acid was purchased by him. PW-5 Mahadev
Sapkal is working as Hamal at Bandra Railway Terminus. He acted
as panch witness for spot panchanama. PW-6 Sameer Shaikh collects
empty bottles at Bandra Railway Terminus. He is the eye witness to
the incident. PW-7 Salim Shaikh collects empty bottles at Bandra
Railway Terminus. He is an eye witness to the incident. PW-8 Phiroj
Maniyar acted as panch witness for arrest of accused. PW-9 Pankaj
Malviya is an eye witness to the incident. He was working as CFA at
Bandra Railway Terminus. PW-10 Ravikumar Badshah is working at
passenger reservation system and provided information about
reservation of Preeti and others. PW-11 Vinodkumar Dahiya is the
eye witness to the incident. He is relative of Preeti who had
accompanied her at the time of journey to Mumbai. PW-12 Anil
Deshmukh is the head constable attached to Bandra Railway Police
Station. PW-13 Nitu Solanki is the relative of victim Preeti. PW-14
Amarsingh Rathi is the father of victim. He is the eye witness to the
incident. He was accompanying the victim at the time of incident.
PW-15 Ramkumar Bhargav is in the business of chemical trading and
sale of acid. PW-16 Mukesh Bhargav is the son of PW-15. He was
conducting the trade with PW-15. PW-17 Subhash Bhamre is
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Assistant Sub Inspector attached to Bandra Railway Police Station.
He recorded the FIR. PW-18 Sitaram Gaikwad is the police constable
attached to Bandra Railway Police station. He was posted at Bandra
Railway Terminus on duty. PW-19 Narendra Thakur is the Naib
Tahsildar who conducted T.I.Parade. PW-20 Dr.Amita Hiremath is a
Plastic Surgeon at Bombay Hospital. PW-21 Dr.Gajanan Chavan is
medical officer who examined the accused at J.J.Hospital. PW-22
Dr.Aniket Pote was attached to Masina Hospital during treatment of
victim Preeti. PW-23 Dr.Shrikant Pai is the medical officer attached
to Gurunanak Hospital where the victim was taken for treatment.
PW-24 Nivrutti Katkar is the head constable attached to Bandra
Railway Police Station. He was deputed to deliver mudeemal to FSL,
Kalina. PW-25 Dr.Bhalchandra Chikhalkar was attached to
J.J.Hospital and conducted post mortem. PW-26 Dr.Manisha Bharti
was the medical officer attached to Bhabha Hospital, Bandra. She
had examined Amarsingh Rathi, Sudeshna and Sameer Shaikh. PW-
27 Dr.Dhaval Gandhi was attached to Masina Hospital. PW-28
Dr.Ashok Kumar Gupta was attached to Bombay Hospital. PW-29
Virendra Chavan was Assistant Police Inspector attached to Bandra
Railway Police Station. He went to spot and seized the articles. PW-
30 Navnath Ghuge was attached to Crime Branch. He recorded
statement of Neeta Solanki at Delhi. PW-31 Vijay Dhopavkar is the
investigating officer attached to Bandra Railway Police Station. PW-
32 Shaikh Hamid was attached to Local Crime Branch and Senior
Police Inspector, who forwarded the samples to FSL. PW-33 Deoram
Vadmare is Senior Police Inspector, Crime Branch. PW-34 Ashok
Khot is Police Inspector attached to Crime Branch and conducted
investigation. PW-35 Vijay Dhamal is the investigating officer. PW-
36 is Praful Bhosale who is Assistant Commissioner of Police and the
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officer who headed the investigation. PW-37 Rehman Shaikh is the
operator of shop of sim card.
9. Apart from ocular evidence, the prosecution has relied upon
several documents which were exhibited in evidence through
witnesses.
10. The Trial Court on analyzing the evidence held that the
accused is liable to be convicted. The Trial Court also held that this
is one of the rarest of rare case which warrants capital punishment
and thus awarded death penalty for the offence u/s 302 of IPC.
11. Learned advocate for appellant-accused had made following
submissions :
(i) The evidence of eye witnesses viz PW-6, PW-7, PW-9,
PW-11 and PW-14 is not consistent with each other. Their
inconsistency vis-a-vis their position in relation to the victim and the
manner in which they saw the accused, is appearing in their
evidence;
(ii) Non involvement of PW-7 and PW-11 in the spot
panchanama proceedings raises serious doubt as to whether two of
them were present at all. The fact that PW-9 chose to speak to police
on the next day, is suspicious circumstance and should be viewed
seriously;
(iii) The incident occurred in few seconds as stated by PW-
14, PW-6, PW-7 and PW-9, who saw the accused momentarily raising
doubt about their ability to identify the accused in T.I.Parade which
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was conducted after eight months from the date of alleged incident.
None of the eye witnesses is clear as to the position of the accused
and the victim. PW-6 was not asked to identify his position in the
spot panchanama proceedings by PW-29;
(iv) The cross-examination of PW-6 and PW-31 make it
clear that PW-6 did not describe the accused to police in his
statement u/s 161 of Cr.P.C in the manner he described the accused
before Court. PW-11 and PW-14 refers to yellow shirt allegedly
worn by the accused, whereas, none of the other witnesses do so.
The cap and the bag of the accused were not recovered. The
disclosure statement of accused u/s 27 does not mention intention
about yellow t-shirt or the red bag;
(v) The statement of PW-35 reveals that even before the
accused was arrested he was being suspected since 12 th January
2014. Since the victim's family lived in the same locality as the
accused, the possibility of family having seen him, cannot be ruled
out. The accused was picked up on 16 th January 2014 without being
arrested and brought to Mumbai and subsequently arrested on 17 th
January 2014. Thus he was in illegal custody from 16 th January
2014 to 17th January 2014. Hence disclosure of his identity to the
witnesses such as PW-11 cannot be ruled out. He was kept in police
custody till 31st January 2014 but there was no application for
T.I.Parade till 31st January 2014 and the T.I.Parade was conducted
after a further delay on 12 th February 2014. While the appellant was
in police custody, PW-16 arrived at police station from Delhi on 28 th
January 2014 and in all probability PW-16 had occasion to see the
appellant-accused in custody. The delay in conducting the T.I.Parade
was deliberate to acquaint the witnesses with the accused;
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(vi) Chavanprash Dabba containing some acid was recovered
three hours after the incident, even though according to PW-6 three
trains had passed that way and according to PW-4 six trains had
passed in those three hours. The spot of incident was left unguarded
for three hours, even though several policemen were present at the
railway station;
(vii) On the basis of statement of PW-11 the sketch of
accused was prepared and shown to the victim, who stated that the
accused may be Pawan Kumar. The victim also wrote down that she
had seen Pawan Kumar at Hazrat Nizamuddin Railway Station while
boarding the train to Mumbai. Pawan Kumar called younger sister of
the victim and inquired about the victim's well being after the attack.
Based on this circumstance, Pawan Kumar was arrested on 9 th May
2013, however, in spite of Pawan Kumar being in custody from 9 th
May 2013 to 26th July 2013 and thereafter from 5 th August 2013 to
9th August 2013, no T.I.Parade was conducted to show him to the
witnesses. Contradictory claims regarding Pawan Kumar were made
at various stages of the case. While opposing his bail it was claimed
that Pawan Kumar was not in touch with any one on his mobile
phone between 27th April 2013 and 2nd May 2013. In the Court it
was claimed by the investigating officer that DCR of Pawan Kumar
indicated that he was at Rohtak at the time of incident. In addition
to this contradictory claim, no CDR of Pawan Kumar was brought on
record to prove his exact location. The name of one Pawan Kumar
was mentioned in the train reservation chart. PW-35 has deposed
that the person was Pawankumar Randhirsingh and not the accused
Pawan Kumar. However, nothing was brought on record to prove
the said fact;
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(viii) When the appellant was arrested Pawan Kumar was out
on bail and not discharged. Hence, joint T.I.Parade could have been
conducted;
(ix) The appellant allegedly made a statement u/ 27 of
Indian Evidence Act disclosing to the police the place from where he
had purchased the acid. On the basis of such statement he was taken
to Delhi where they found that the person from whom he had
allegedly purchased the acid, was in Goa. Police issued summons to
the owner of shop and headed back to Mumbai without seizure of
any register or document regarding sale/hand over of sample to the
appellant. PW-16 came to Mumbai on 28 th January 2014 and for the
first time presented the sample register with nine entries from 8 th
April 2013 to 5th July 2013. Apart from these nine entries, the said
register was brand new and empty book which did not inspire
confidence. PW-16 claimed that register was at his home but the
prosecution offered no explanation as to why police did not seize the
register from house of PW-16 on 21st January 2014. The limited
number of entries in the register and it's non-disclosure by police,
goes to show that the register was fabricated to suit prosecution and
create circumstance against the accused. No question was put to
appellant u/s 313 of Cr.P.C whether he had voluntarily pointed out
the shop from where acid was procured;
(x) According to PW-36, the CDR of mobile number of
appellant showed that he was in train. However, no CDR was
exhibited. The prosecution claimed that CCTV footage was collected
but the same was not relied upon or exhibited on the ground that
footage was not clear. However, nothing is put on record to prove
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that CCTV footage was unclear. CCTV footage was not sent to FSL
nor played in the Court;
(xi) White dabba was recovered during spot panchanama
which was allegedly used by accused to throw the acid at the victim.
No finger prints were taken from the same in spite of fact that finger
print match would have been the evidence and accused could have
been linked to the crime;
(xii) The Trial Court has relied upon the alleged false
explanation given by appellant in his statement u/s 313 of Cr.P.C to
hold that same acts as a missing link in the chain of circumstances
against appellant. The appellant cannot be convicted only on the
basis of false statement and the burden to prove its case by
prosecution never shifts on the accused;
(xiii) Without admitting that the appellant is connected with
the crime, it is submitted that the manner in which the crime was
allegedly committed and the medical evidence, do not show the
intention to kill but only to dis-figure. The accused could have used
other methods to kill the victim. The evidence of doctor show that
condition of victim was fair initially and became critical later. In fact
it seems that if the treatment had been given in a different manner
and the fistula had been discovered earlier, the results may have
been different. The percentage of burns suffered by victim is not
clear from the evidence on record and the doctors have given
conflicting opinions. As per Masina Hospital case papers, the victim
was treated initially and she had 15.57 % burn injuries. However, as
per post mortem report, the burn injuries were 26%. The doctor
who conducted the post mortem opined that the injuries were
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sufficient to cause death of person. The said opinion was offered
without looking at the treatment papers. He had no access to the
treatment of first sixteen days at Masina Hospital. His opinion
cannot be treated as reliable and conclusive on the question of
injuries being sufficient to cause death. The victim stayed in the
hospital for around one month and neither CT scan nor endoscopy
was carried out for sixteen days. The condition of the victim
deteriorated subsequently. The opinion of doctor at Bombay
Hospital shows that the treatment could have been done differently.
Sufficiency of injuries, thus, cannot be inferred from the evidence. It
cannot be held that the appellant had intention to cause death. It is
submitted that the case would fall within purview of either Section
304(I) or Section 304(II) of IPC;
(xiv) The T.I.Parade was defective. The T.I.Parade was
conducted belatedly. No credible investigation was carried out about
involvement of Pawan Kumar. While apprehending appellant in the
crime, the involvement of Pawan Kumar was not eliminated. The
investigation was mala fide. The father of victim has protected the
real perpetrator of crime. He filed affidavit exonerating Pawan
Kumar. While Pawan Kumar had filed an application for bail, the
prosecution had opposed the same by filing reply and supported its
case. The parade for identification of Pawan Kumar was not
conducted deliberately. The defence of the appellant was not
appreciated in proper perspective. The alibi of appellant was not
considered. The benefit of doubt ought to have been given to the
appellant-accused. The documents were fabricated to suit the
prosecution case. No evidence to establish the presence of appellant
on Garibrath train is laid. The version of Neeta Solanki is after
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thought. She did not disclose the incident narrated by the victim to
any family members and for the first time after a period of eight
months she had referred to the alleged harassment by person namely
Ankur as disclosed to her by the victim. Her evidence was hearsay.
The documents tendered in statement u/s 313 of Cr.P.C by accused
were not taken into consideration; The explanation to injuries on
person of applicant has not been considered. The documents
furnished through PW-21 who examined the appellant were
doubtful.
(xv) Assuming that charge sheet u/s 302 is proved, the Trial
Court ought not to have awarded the capital punishment as the case
cannot be termed as rarest of rare case. The sentencing exercise
undertaken by the Trial Court is improper and against the mandate
of Hon'ble Supreme Court in cases of Muniappan Vs. State of
Tamil Nadu1, Ajay Pandit Vs. State of Maharashtra 2, Rajendra
Prahladrao Wasnik Vs. State of Maharashtra 3. The Trial Court did
not provide sufficient time to defence and no efforts were made by
the Court to elicit information from the accused for proper
sentencing exercise. The Trial Court relied on collective conscience
to hold that the accused deserves death penalty. The decision was
contrary to the parameters laid down by Supreme Court in Santosh
Bariyar Vs. State of Maharashtra 4 and in case of Channulal Vs.
State of Chattisgarh5. The Trial Court relied on the crime test to
hold that the case is rarest of rare while ignoring criminal test, as
laid down in various cases, like Bachan Singh Vs. State of Punjab6,
1 (1981)3-SCC-11
2 (2012)8-SCC-43
3 Review Petition (Crl) No.306-307 of 2013
4 (2009)6-SCC-498
5 Criminal Appeal No.1482/83 of 2018
6 (1980)2-SCC-684
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Shankar Kishore Khade Vs. State of Maharashtra 7 and Santosh
Bariyar Vs. State of Maharashtra (supra).
(xvi) The Trial Court relied on cases like Dhananjay Chatterji
Vs. State of West Bangal8, Mohamed @ Abdul Mannan Vs. State
of Bihar9, which were disputed in Shankar Khade Vs. State of
Maharashtra (supra) and Sangeet and another Vs. State of
Haryana (2013)2-SCC-452;
(xvii) No evidence was laid down by prosecution to prove that
the accused is beyond reformation and rehabilitation as mandated in
case of Bachan Singh (supra), Rajendra Wasnik (supra), Rajesh
Kumar Vs. State (NCT of Delhi)10 and Santosh Bariyar (supra);
(xviii) The Trial Court has also ignored other mitigating
circumstances, such as, young age of the accused who was 23 years
of age at the time of commission of offence and unblemished
conduct in jail. The principle enunciated in the case of Bachansingh
(supra),Guruvail Sigh and another Vs. State of Punjab (2013)2-SCC-
713, Shyam Singh @ Bhima Vs. Saate of Madhya Pradesh (2017)11-
SCC-265, Santosh Kumar Singh Vs. State of Madhya Pradesh
(2014)12-SCC-650, were not taken into consideration. The Supreme
Court has considered lack of criminal antecedents and unblemished
record in jail as mitigating circumstance in the case of Gudda @
Dwarikendra Vs. State of Madhya Pradesh (2013)16-SCC-596,
Santosh Kumar Singh Vs. State of Madhya Pradesh (supra), Shyam
7 (2013)5-SCC-546
8 (1994)2-SCC-220
9 (2011)5-SCC-317
10 (2011)13-SCC-706
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Singh @ Bhima Vs. State of Madhya Pradesh (supra), Channulal Vs.
State of Chattisgarh (supra). The Supreme Court in the recent
decision in Yogendra @ Jogendra Singh Vs. The State of Madhya
Pradesh11, has held that the act of throwing acid shows only that the
accused intended to disfigure and not to kill and as such it is a rarest
of rare case. Taking into consideration the mitigating circumstances
and the improper sentencing exercise, the present case is not a rarest
of rare case and does not deserve death penalty.
12. Learned counsel for appellant in addition to the decisions
referred to hereinabove, has also relied upon following decisions :
(a) Vikramjit Singh Vs. State of Punjab12;
(b) Bhagirath Vs. State of Madhya Pradesh13,
(c) Juwarsingh Vs. State of Madhya Pradesh14;
(d) Tomaso Bruno and another Vs. State of U.P15;
(e) Datar Singh Vs. State of Punjab16;
(f) Habal Shaikh and others Vs. The State17;
(g) Ganesh Bhavan Patel and anr Vs. State of Maharashtra18;
(h) Brijmohan and anr Vs. State of Rajasthan19;
(i) Uday Singh Vs. State20;
11 Criminal Appeal Nos.84-85 of 2019, dated 17-1-2019
12 (2006)12-SCC-306
13 (1976)1-SCC-20
14 1980 (Supp)-SCC-417
15 (2015)7-SCC-178
16 AIR-1974-SCC-1193
17 Criminal Appeal No.299 of 1988 of DB High Court of Calcutta
18 (1978)4-SCC-371
19 AIR-1994-SC-739
20 2009(107)DRJ-105 (DB)
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(j) Dharampal and others Vs. State of Delhi21;
(k) Sidhanki Ram Reddy Vs. State of Andhra Pradesh22;
(l) Satrughan @ Satrughana PaPavida and others Vs. State
of Orissa23;
(m) Rajesh Govind Jagesha Vs. State of Maharashtra24;
(n) Vilas Pate Vs. State of Maharashtra25;
(o) Ashraf Shah Vs. State of Maharashtra26;
(p) Harchandsingh and another Vs. State of Haryana27.
13. Learned Special Public Prosecutor submitted that the
prosecution has established the charge u/s 302 of IPC as well as
Section 326-B of IPC beyond all reasonable doubt. There is sufficient
evidence to prove the guilt of the accused. The Trial Court has
analyzed the evidence in detail and has given findings about
involvement of appellant in the crime. The ocular evidence as well
as documentary evidence establishes the charge against the accused.
The eye witnesses have given ocular account of the incident and
there is no doubt to discard their evidence. The defence has not
been able to demolish their evidence. The appellant has been
identified by the witnesses. The evidence of eye witnesses have been
corroborated by other witnesses. The medical evidence supports the
prosecution case. The examination of accused by the medical officer
establishes the injuries on her persons being caused by sulphuric
acid. The presence and participation of the appellant in the crime has
been proved by prosecution. Minor infirmities in the evidence of
witnesses would not be fatal to the prosecution case. The accused is
21 ILR (2004)II-DELHI-317
22 (2010_7-SCC-697
23 1995 (supp)4-SCC-448
24 (1999)-8-scc-428
25 1996-CRLJ-1854
26 1996-CRLJ-3147
27 (1974)3-SCC-397
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involved in serious crime. Apart from the evidence of eye witnesses,
the circumstantial evidence, medical evidence, forensic evidence and
other piece of evidence, indicate commission of crime by the
appellant. The presence of PW-6 and PW-7 at the scene of offence
and being eye witnesses to the incident is being natural. Merely on
account of arrest of another person who was discharged
subsequently, would not entitle the appellant the benefit of doubt as
there is voluminous evidence to show participation of the appellant
in crime. There is evidence on record to show that the appellant had
motive to commit crime. He collected the acid, he followed the
victim, he was aware about the consequences of acid being thrown
on the person of deceased. He tapped the victim on her back so that
she can turn around, which would facilitate him to throw the acid on
her face. Thus, there was clear intention of the accused to commit
murder. The result of plunging the acid on the face of accused had
caused severe damage to the body of victim, which resulted into her
death. It is difficult to reconcile that the intention of appellant was
only to disfigure and not to commit murder. The fact that the
accused has collected the acid and chased her up to Mumbai and
poured the same directly from close vicinity on the face of deceased,
clearly indicate he intended to kill her. Learned Special Public
Prosecutor drew our attention to the evidence of PW-6, PW-7, PW-9,
PW-11 and PW-14. It is submitted that PW-6, PW-7 and PW-9 were
present at Bandra Railway Terminus. PW-7 and PW-8 were
collecting empty bottles at platform no.3 in routine course. They
were directed to collect the bottles by Nasim Chacha. Nothing has
been brought on record through cross examination of these witnesses
to discard their evidence. The victim was accompanied by PW-11
and PW-14. The acid which was plunged at the deceased also spilt
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on the person of PW-11 and PW-14. They were treated by the
doctors. The doctors have opined that the injuries were sufficient in
the ordinary course of nature to cause death. The prosecution has
also established through the evidence of PW-15 and PW-16 that the
acid was delivered to appellant which was supported by entries in
the register. The container in which the acid was brought and
thrown by the accused on the victim, was recovered from the spot
and the residue were sent for chemical analysis, which was found to
be containing sulphuric acid. PW-6 Sameer Shaikh had also suffered
injury on account of the drops of acid spilt on his person. The
presence of eye witnesses at the place of incident, therefore, cannot
be ruled out and it has been positively established by the
prosecution. Learned Special Public Prosecutor drew our attention
to the evidence of aforesaid witnesses and the medical officers and
submitted that the prosecution has been able to establish the chain of
circumstances to prove that the appellant has committed the crime.
The appellant could not explain about the old healed injury scares on
the hands and chest. The doctor who had examined the accused
have stated that the injuries on the person of accused were burn
injuries which would have been caused by corrosive substance. The
appellant has been identified by the witnesses. They had seen the
accused flinging acid on victim. They are natural. They have given
reasons why they were at railway station at the time of incident.
PW-11 and PW-14 were with Preeti. They have no enmity against
accused. They are injured witnesses. Article-C was brought by
appellant. It was obtained from PW-16. As per PW-21, it is strong
corrosive liquid. The same liquid was found on the clothes of victim
and Sunita, platform no.3, scalp hair of Preeti. The defence has
taken plea of alibi and that old healed scars can be caused due to oil
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burn, but has not brought anything in evidence to prove the same.
The accused could not be arrested on victim could not speak. It is
only when Neetu Solanki revealed name of appellant which lend
support to his involvement. Delay in holding parade would not be
fatal to prosecution. The manner in which crime was committed had
impact upon witnesses who could identify him in parade. The delay
in recording statements has been explained by circumstances in
which the incident had occurred.
14. Learned Special Public Prosecutor submitted that the Trial
Court has rightly awarded death penalty. He submitted that in the
decision of Supreme Court in case of Bachan Singh (supra), it is laid
down that life imprisonment is a rule and death penalty is an
exception and criteria as to when the case can be considered as to
rarest of rare case. He also relied on the decision in the case of
Macchi Singh Vs. State of Punjab28 wherein it was emphasized that
the Court should draw balance sheet on aggravating and mitigating
circumstances and thereafter giving maximum weightage to
mitigating circumstances, arrive at a proper decision by finding out
on which side the balance tilts. According to learned Special Public
Prosecutor, the evidence adduced indicate aggravating circumstances
justifying no other punishment except death penalty. There are no
mitigating circumstances at all. The crime was brutal. The victim
was defenceless young girl. There was no provocation from victim.
It was a preplanned murder. The accused followed the victim who
was supposed to join her employment in as Lieutenant in Army. The
accused procured sulphuric acid on false ground. He had issued
caution warning to the victim not to go to Mumbai. Hence, capital
28 (1983)3-SCC-470
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punishment is justified. The Trial Court has analysed the reasons for
awarding death to the accused. The Trial Court has given cogent
reasons for convicting the appellant and interference in the decision
of the Trial Court is not warranted. Reliance is also placed on
decision of Supreme Court in the case of Mukesh and others Vs. State
of NCT of Delhi and others29.
15. Learned Special Public Prosecutor relied upon following
decisions :
(a) Laxmi Vs. Union of India30;
(b) Mohd. Farooq Abdul Gafur and others Vs. State of
Maharashtra31;
(c) Ramcharan Bhudiram Gupta Vs. State of Maharashtra32;
(d) Hema Vs. State, through Inspector of Police, Madras33;
(e) Hasan Sk Khannu Rayaliwale Vs. State of Maharashtra34.
(f) State of UP Vs. Devendra Singh35;
(g) Ravinder Kumar and anr. Vs. State of Punjab36;
16. We have analysed the evidence on record. The prosecution
has adduced the evidence of eye witnesses which inspire confidence.
There is nothing to doubt the veracity of the evidence and the
witnesses examined by the prosecution. The incident had occurred
on 2nd May 2013. The victim girl Preeti and her relatives had
29 (2017)6-SCC-1
30 (2014)4-SCC-427
31 (2010)14-scc-641
32 1996(1)-Bom.C.R.-190
33 (2013)10-SCC-192
34 2003 (105)(4) Bom.L.R.-428
35 2005-SC (CR)-582
36 2001-SCC (CRI)-1384
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boarded Garibrath Express for Mumbai from Hazrat Nizamuddin
Station. They arrived in Mumbai on 2nd May 2013. The train
reached Bandra Railway Terminus at about 8.05 am. The victim had
alighted from train and was proceeding along with her father
Amarsingh Rathi (PW-14), Vinodkumar Dahiya (PW-11) and his wife
Sunita Dahiya. The victim was tapped from back side. When she
turned back, the attacker wearing scarf on his face and cap on his
head, plunged the acid on the victim from one container he was
holding and fled from the platform. PW-6 Sameer Shaikh (PW-7)
and Salim @ Salman were working for Nasim Chacha as empty
bottle pickers at Bandra Railway Terminus. PW-6 was at platform
no.3 as he was allotted coaches to collect bottles. He was given J-1
to J-4 coaches. He was standing near J-2 as people were getting
down. One girl alighted from J-2 Coach. Other persons were also
getting down following her. PW-6 went towards J-3. He saw Preeti.
One boy came from back side by giving push to him and went ahead.
He was holding dabba. He tapped the girl by his hand on which she
turned back. He plunged the contents of dabba on the face of the
girl. It also spilt on his hands. PW-6 shouted and told Salman (PW-
7) who was ahead of him, "Pakad Saale Ko". The attacker turned
back. The cap he was wearing fell down and scarf slided down. PW-
6 saw him. PW-6 sustained burn injury on his hand. PW-7 Salim ran
behind the attacker and came back stating that the attacker has
escaped. The face of Preeti was burnt. PW-6 was taken to Bhabha
Hospital. His statement was recorded on the same day i.e. on 2 nd
May 2015. In his cross-examination the defence has brought some
omissions which are not fatal to the prosecution case. The omissions
were with regards to description of victim in statement, liquid on
both hands, complexion of boy (accused). PW-6 has identified the
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appellant-accused in the identification parade and Court. PW-6 was
examined by doctor for the burn injuries sustained by him. PW-7
heard screams of the girl from platform from coach no.J-2. He also
heard shouts of PW-6. He saw one boy running from his side and
went ahead. He followed him. He could see the face of the accused
as the scarf had slided down. He chased the assailant but he fell
down and the assailant disappeared. He came back to Sameer
Shaikh. He saw the victim. He described the attacker. He identified
the appellant in the T.I.Parade and Court. PW-9 is clearing
forwarding agent of parcels at Bandra Terminus. He used to be
present at Bandra Terminus. On 2 nd May 2013 he was standing near
platform no.3 with his parcels when Garibrath Express arrived from
Delhi. According to him J-2 coach was in front of him. The
passengers were alighting from the train. He saw one boy with scarf
on his face, wearing a cap and holding plastic dabba/container and
going towards engine. The boy tapped one girl from back side. The
girl turned back and the attacker hurled the liquid from dabba on the
face of girl and ran away. The attacker threw dabba. Girk screamed.
Sameer shouted `pakdo...pakdo'. He ran after boy. The attacker
turned twice. He could see his face as the scarf had come down. He
was cross examined by defence. However, there was nothing to
doubt his presence at the place of incident. He identified the accused
in the T.I.Parade and Court. He identified dabba used by accused for
throwing acid. PW-11 was accompanying Preeti. He is the husband
of aunt of deceased. Aunt Sunita Dahiya was also accompanying
them. By adjusting seats all of them traveled together. He stated
that on 2nd May 2013 he went to toilet towards J-3 coach at about 4
am. He noticed one boy standing near the door of toilet. He was
told to go and sit on his seat. The boy told him that he got bored
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and therefore standing outside. PW-11 alighted from the train with
wife Sunita, Preeti and Amarsingh Rathi (PW-14) at Bandra
Terminus. According to him, he saw one boy wearing cap and scarf
on face and hurling something from box on Preeti. She shouted.
The attacker ran away. He looked behind. His scarf had come down
to his neck. The witness saw his face and identified him as the same
boy with whom he talked in the train near toilet. Preeti sustained
burn injuries. She was taken to Gurunanak Hospital. Then she was
shifted to Masina Hospital. He identified the accused in T.I.Parade.
He also identified him in the Court. He was cross examined on
identification parade and other aspects. There was nothing in cross
examination to doubt his evidence.
17. PW-14 Amarsingh Rathi (father of Preeti) stated that he along
with Vinodkumar Dahiya (PW-11) and Sunita Dahiya travelled with
Preeti by Garibrath Express from Delhi to Bandra Terminus. When
they alighted from train at Bandra Terminus and they were walking,
they heard screams of Preeti. Acid fell on hands, leg and back side of
shoulder of PW-14. He saw the person covering his face by scarf and
wearing a cap, running away. He was taken to Bhabha Hospital. He
went to Bandra Police Station and lodged FIR. The victim had
sustained burn injuries. He was cross examined by defence. He
admitted that he filed affidavit to withdraw case against Pawan and
he collected information that Pawan Kumar was not at the spot.
Some omissions were brought on record. He stated that police did
not call him to see CCTV footage and Vinodkumar Dahiya was called
for that purpose. Incident took place in few seconds.
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18. PW-13 Neeta Solanki was in friendly relations with Preeti
being of her age. She was related to Preeti. Preeti was visiting her
house. She used to stay over night at her house. In March-2013
Preeti told that one boy namely Ankur residing in BBMB colony
where Preeti was residing with her parents, was behaving differently.
Preeti had informed her that once the boy had stopped her on the
way and told her that he liked her and proposed her for marriage.
Preeti had rejected the proposal and asked him to first make his
career and then to think about marriage. Preeti had also stated,
according to this witness, that 15 to 20 days prior to the incident
Preeti met Neetu and she had told her that Ankur had asked her as to
why she is going to Mumbai and her going to Mumbai was not good.
Preeti had told him to mind his own business. The witness, however,
admitted that she did not disclose to family of Preeti about
conversation of Preeti and Ankur. She did not disclose it to police as
she had taken it lightly. She disclosed it to the family members
before her statement was recorded. She was not knowing Ankur.
19. PW-5 was working at Bandra Terminus. He was called by
police. He acted as panch witness to the spot punchanama (Exhibit-
45). One white coloured dabba without lid was recovered from spot.
The words "Divya Pharmacy" were written on the container. The
fluid spread on the ground was collected with cotton swabs. Pieces
of clothes were also collected from spot. Soil was collected. The
witness identified the dabba seized in his presence from the spot. In
cross examination he stated that during 8.00 to 11.00 am six trains
arrive and six trains go. Due to crowd station gets dirty and it is
cleaned time to time. There was no police when he was taken to
spot.
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20. PW-1 Vasudev Baberwal acted as panch for seizure of clothes
of Preeti. He stated that clothes were looking like burnt and torn.
Clothes of maternal aunt of Preeti, Sunita Dahiya were also seized.
Those were also found like burnt. The panchanama was marked as
Exhibit-28. PW-2 Anand Sandhe deposed that he acted as panch for
opening and resealing of article. The box was removed from packet.
`Divya Pharmacy' was written at bottom. It was again kept in packet
and resealed. He identified the box in Court. Panchanama was
marked as Exhibit-34. On 19 th January 2014 PW-4 was called by
police at Kurla Crime Branch office. The accused was present at the
police station. He told his name as Ankur Panwar and disclosed his
readiness to show the place from where and from whom he
purchased the acid at Narela, Delhi. The memorandum of statement
was recorded vide Exhibit-41. PW-4 with other panch and PW-35
went to Delhi along with accused on 20 th January 2014 by train. The
accused Ankur took them to one godown which was closed. PW-15
who is the owner of godown was called. He came there. The
accused stated that he did not purchase the acid from PW-15 but
from a young man. The accused stated that he purchased the acid
from same godown. PW-15 informed that his son Mukesh (PW-16)
also sit at the said shop. He had gone to Goa. He opened the
godown. Ramkumar stated that shop is shifted to another place.
Panchanama was recorded and adduced in evidence as Exhibit-42.
21. PW-15 Ramkumar Bhargav stated that he sells sulphuric acid,
hydrochloric acid and nitric acid through his company. His son
Mukesh helps him in his business. Police visited his godown with
accused in veil. Police did not ask for registers from him. He did not
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give registers. His son was in Goa. PW-16 Mukesh Bhargav deposed
that samples can be given upto 5 kgs. They give samples to party so
that they can verify the quality and place the order. He came to
Mumbai on 28th January 2014. There was an entry in the name of
Ankur Battery who had taken 2 kg sample of sulphuric acid. It was
given for the purpose of business of battery newly started by that
person. He had shown identify proof. Name was entered in kaccha
register. He brought chavanprash dabba. He was given 2 kgs
sulphuric acid. The witness was called by police on 12 th February
2014. He identified the accused in jail. He also identified him in
Court. He also identified dabba in which acid was given to accused.
Witness identified register and entry therein. In cross-examination,
omission was brought on record with regard to word `sale' in
connection with sample of acid. He did not give documents of sales
tax as police did not ask for same.
22. PW-10 supplied information to police in respect to PNR
numbers which were automatically generated and saved in the server
when the ticket is purchased. He has supplied information with
regards to ticket purchase in the name of Amarsingh Rathi, Preeti
Rathi, Vinodkumar Dahiya and Sunita Dahiya. He also produced
certificate u/s 65B of Indian Evidence Act. He retrieved the
information from server.
23. PW-8 Phiroj Maniar is panch witness for arrest of appellant.
One mobile phone was found in his possession. Two sim cards were
also recovered from him. The articles found with accused were
sealed. The same were identified by this witness. Accused was
arrested on 17th January 2014. The police told him that the
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accused/appellant was brought from Delhi. PW-37 Rehman Shaikh
conducts mobile accessory business. He stated that accused had
visited his shop on 9th May 2012 to get new sim card. He filled up
form. Documents tendered forms bears his photograph and
signature.
24. PW-19 Narendra Thakur is Nayab Tahsildar. He conducted
parade on 12th February 2014. There were seven witnesses present
for identification parade. All witnesses identified appellant/accused.
He followed the procedure for holding parade. He took precaution
to see that witnesses had no opportunity to see accused before
parade was conducted. Nasim Chacha identified accused. Salim
Shaikh, Vinodkumar Dahiya, Samir Shaikh, Rohit Singh, Mukesh
Bhargav, Pankaj Malviya identified accused. He was cross-examined.
In cross examination he stated that witnesses did not tell him for the
cause of identification of accused by them.
25. Medical evidence is vital for the prosecution in the present
case. It corroborates evidence of witnesses. It determines the cause
of death of Preeti. It also indicates old healed injury scares on the
hands and chest of accused. PW-26 Dr.Manisha Bharti was attached
to Bhabha Hospital on 2nd May 2013 when Amarsingh Rathi,
Sudeshna Singh, Sameer Shaikh were brought to hospital. She
examined Amarsingh Rathi and noticed superficial to deep burns
over upper back right and left hand and left thigh. The injuries were
4 to 5 per cent burns. Sudeshna Singh was having deep burns over
left arm and fore arm and thai. Sameer Shaikh had sustained burn
injuries over both the fore arms and left shoulder. The certificates
vide Exhibits-134, 135 and 136 were issued by PW-26 in respect to
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aforesaid persons. The defence tried to contend that there were
infirmities in the MLC register regarding entry of patients made at
6256, 6257 and 6258. Preeti was initially treated at Gurunanak
Hospital. PW-23 Dr.Shrikant Pai examined her. He noticed burns
over face of Preeti along with throat, trunk and right upper limb. He
monitored her vitals and secured intravenous line and started IV
fluid. He started ringer lactate fluid and informed the relatives about
lack of facilities of treatment for proper management. He advised
him to shift to other hospital. PW-3 Mrs.Shreya Sawant was sister
in-charge at Masina Hospital. Preeti was brought to hospital by her
relatives and police. She stated that Preeti had burns over face, chest
and upper arms. She was not in a position to talk but she was
conscious. Her maternal aunt Sunita Dahiya and her husband
Vinodkumar were with her. Sunita was having burns on her body.
Both were given medical treatment. Clothes of Preeti and Sunita
were seized by police. PW-22 Dr.Pote was in Masina Hospital where
Preeti was brought by PW-11 and police constable. According to
him, Preeti had chemical facial burn injuries with injuries on neck,
shoulder, chest and back. Preeti was not stable and unable to speak
and had difficulty in breathing. She had internal injuries and was
unable to speak. An endoscopy was done on 18 th May 2013.
Tracheotomy was done on Preeti. Tracheo-oesophagial fistula was
noticed on endoscopy. She was referred to Bombay Hospital. The
defence is trying to contend that the treatment was delayed, which
has caused her death PW-27 Dr.Gandhi is a Plastic Surgeon in
Masina Hospital. He treated Preeti from 2 nd May 2013 to 18th May
2013. Endoscopy was advised to rule out possibility of tracheao
esophageal fistula. In the cross-examination he has stated that when
patient was transferred from Masina Hospital she was evaluated 15%
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burns over body surface area. The general condition of patient can
be good, fair and poor. The condition of patient was neither good
nor poor. Hence he has written fair. PW-20 Dr.Amita Hiremath is
attached to Bombay Hospital on 18 th May 2018. Preeti was admitted
in Bombay Hospital with history of acid burns. She was transferred
to Bombay Hospital from Masina Hospital. She stated that the
condition of victim was critical. Preeti had burns to face, oral cavity,
chest and upper extremities and airway, lungs and upper gastro
intestinal tract. She was critical on admission and was on ventillator.
She had tracheao esophageal fistula. She had developped sepsis and
multiple organ failure. She had cardiac arrest on 1 st June 2013. She
died at about 4.00 p.m. She issued certificate Exhibit-99 in respect
of treatment of Preeti. She was cross-examined to elicit that medical
treatment given to Preeti was not proper, the record was not
properly maintained in respect to treatment and documents are
fabricated. However, no medical negligence or improper recording is
brought on record to doubt the medical treatment given to the victim
or genuineness of the record. PW-28 Dr.Ashok Kumar Gupta also
treated Preeti at Bombay Hospital. He noticed loss of vision on right
eye of Preeti with loss of upper and lower eyelid. He stated that on
the left eye there was perception of light but not of the object. There
was inflammation of lungs. She was not able to speak. Preeti was
critical when admitted to Bombay Hospital. He produced report of
examination and the measures taken and procedures carried out till
27th May 2013. He brought original case papers of treatment of
Preeti till her death. Report was marked as Exhibit-154.
26. PW-25 Dr.Chikhalkar conducted post mortem of dead body of
Preeti on 1st June 2013. He is a professor in Forensic Medicine at
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J.J.Hospital. He noticed burn injuries over face and neck, chest and
abdomen, right and left upper limb, right and left lower limb and on
back of Preeti. He deposed that injuries on the face and chest were
sufficient to cause death. He opined provisional cause of death as
evidence of septicemia with pulmonary consolidation with
pulmonary haemorrhage with chronic passive venous congestion
liver in a hospitalized case of superficial to deep burns. While
conducting post mortem, Doctor Thube and Dr.Waghmare were with
him. PW-25 and Dr.Waghmare gave final cause of death as
complications due to acid burns (un-natural) and issued certificate
Exhibit-130. According to PW-25, as the acid had reached the upper
respiratory tract and esophagus, it developed septicemia causing
complications. He was extensively cross-examined. He admitted
that sufficient acid is corrosive poison and that it is possible that due
to inhalation of corrosive poison, lungs were damaged, but disagreed
with the contention that 2.5 sq.cm piece of affected area is required
in case of poisoning to detect the same. He also stated that cardiac
pulmonary arrest was the cause of death as a result of sepsis and
multiple organ failure confirmed.
27. PW-21 Dr.Gajanan Chavan with Dr.Thube and Dr.Niturkar
examined accused on 20th January 2014. He was working as
Associate Professor in Forensic Medical Department at J.J.Hospital.
They noticed seven old healed scars of injuries on right and left
forearm on flexor aspect and over right side chest. Old healed
injuries on right forearm were :
(i) 0.05 cm x 0.04 cm non tender, smooth, white, glistening
over right forearm flexor aspect. 0.05 cm above wrist joint;
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(ii) 2.5 x 0.8 cm non tender, smooth, white, glistening,
margins with brown pegmentation of neovascularization with
coalescement (merging) at places over right forearm flexor aspect 7
cm above wrist joint;
(iii) 3.00 cm x 1.00 cm non tender, smooth, glistening,
white, over right forearm flexor aspect 9.5 cm above wrist joint;
(iv) 1.5 cm x 0.9 cm non tender, smooth, glistening, white,
over right forearm flexor aspect 11.00 cm above wrist joint;
(v) 1.0 cm x 0.3 cm non tender, smooth, glistening, white,
over right forearm flexor aspect 9.00 cm above wrist joint and
laternal to injury no.3;
(vi) 2.00 x 0.8 cm non tender, smooth, glistening, white,
over lect forearm flexor aspect 4.00 cm above wrist joint margins ill
defined because of artificial tatoo mark;
(vii) 1.00 cm x 0.2 cm horizontal, over right chest 8.00 cm,
below and lateral to right nipple in intercostal space, non tener,
smooth, glistening, white.
28. The CA report of viscera does not reveal any poison. Exhibit-
119 is the CA report of scalp hair of Preeti. Exhibit-120 is in respect
of same hair in which sulphate from sulphuric acid is detected.
Exhibit-121 is in respect of cloths of Preeti and Sunita Dahiya
detecting sulphate from sulphuric acid. Article-C was the dabba with
brownish liquid which is detected as concentrated sulphuric acid.
Articles seized from the spot of crime, clothes of Preeti and Sunita
seized from hospital. Scalp hair collected after the death of Preeti
and the contents of Article-C detected concentrated sulphuric acid.
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29. PW-12 is head constable attached to Bandra Railway Police
Station. Station Master gave memo to him to carry victim to Bhabha
Hospital. The victim was in pain due to acid burns on her face.
Vinodkumar Dahiya and Sunita Dahiya were with victim Preeti. They
told PW-12 to take Preeti to nearest best hospital. Therefore, he took
them to Gurunanak Hospital. Doctors gave first aid to victim at
Gurunanak Hospital and advised them to take her to Masina
Hospital. Then Preeti was admitted to Masina Hospital. PW-18
Sitaram Gaikwad was posted at Bandra Railway Police Station. He
was on duty at Bandra Terminus. The station master gave him
memo and told him to take injured persons to nearest hospital. He
took them to Bhabha Hospital. There were three injured persons out
of acid attack. They were treated. One of them was Amarsingh
Rathi. After treatment he took them to Bandra Police Station. The
other injured persons were Sudesha Kumari and Sameer Shaikh. In
cross-examination he stated that there are CCTV cameras at Bandra
Terminus.
30. PW-17 Subhash Bhambare was at the relevant time attached to
Bandra Railway Police Station as Assistant Sub Inspector. Amarsingh
Rathi lodged report. The witness recorded complaint. FIR was
registered. PW-24 Nivrutti Katkar is head constable attached to
Bandra Railway Police Station. PW-31 deputed him to take articles
to FSL, Kalina. He took articles and delivered to FSL. The condition
as sealed is not mentioned in his statement. PW-29 Virendra Chavan
was API attached to Bandra Railway Police Station. He went to
platform. Spot was shown by Sameer Shaikh. He saw acid stains on
platform. PW-30 Navnath Ghuge was API attached to Crime Branch.
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As per order of High Court, investigation was transferred to DCB,
Crime Branch. ACP Bhosale directed him to go to Delhi to record
statement of Neetu Solanki (PW-13). He recorded the statement of
said witness at Delhi. He also collected information regarding status
of Garibrath Express. In cross he stated that he did not collect call
details of Neetu Solanki.
31. PW-31 Vijay Dhopavkar is Senior Inspector of Police. He
seized clothes of Preeti and Sunita. He recorded statement of Salim
Shaikh, Sameer Shaikh, Sudesha Kumari and Dipendra Singh. In
cross he stated that Sameer Shaikh (PW-6) has not described Preeti
in his statement. Sameer has not stated about fair complexion of
boy. He had collected CCTV footage and seen them. He had not
shown CCTV footage to witnesses except Vinodkumar. CCTV footage
was not clear. Therefore not shown to anybody. PW-32 Shaikh
Hamid, Senior Police Inspector, attached to Dadar Railway Local
Crime Branch at relevant time, added Section 302 of Indian Penal
Code after death of Preeti. He forwarded six sealed bottles of
samples to FSL at Kalina. In cross he stated that he did not collect
call details of Pawan Kumar Name of Pawan Kumar is seen in chart.
PW-33 Devram Vadmare was attached to Railway Crime Branch. He
stated that Pawankumar was arrested. He was arrested on suspicion.
He collected CDR of his phone number. It was revealed that
Pawankumar was at Rohtak at the time of incident. He had attached
papers of communication for CDR with papers of investigation. He
had seen CCTV footage which was not clear. He did not collect
CCTV footage and did not send it to FSL. PW-34 Ashok Khot is
Police Inspector. He conducted search of accused/appellant. He
found articles. Old injury scar was seen on left hand. He took
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accused to J.J.Hospital. The accused was examined by doctor. PW-
35 Vijay Dhamal is API. He was directed by PW-36 to go to Delhi to
investigate about passenger on seat no.92 namely Pawankumar in
bogey no.J/4 who travelled in same train from Delhi to Mumbai. He
found name of Pawankumar as Randhir Singh. ACP Bhosale made
inquiry with accused Ankur. PW-36 is the investigation officer. He
called for CDR of Ankur (appellant). The mobile location of said
number on the date of incident was seen from Narela to Nizamuddin
to Bandra.
32. On analysis as stated above we are of the considered opinion
that the prosecution has clearly established that the accused-
appellant is involved in commission of crime. The overt act
attributed to the accused, the preparation made to commit the crime,
the manner in which acid was plunged on the face of victim, the
nature of injuries, opinion expressed by medical officers, cause of
death reflected in the medical evidence, would indicate that accused
had intention to commit murder. He plunged the acid on the face
which resulted in her death.
33. Both the sides have relied upon several judicial
pronouncements in support of their arguments on merits of case. In
case of Vikramjit Singh Vs. State of Punjab (supra) relied upon by the
defence, it was observed that suspicion cannot be a substitute for
proof. In case of Bhagirath Vs. State of Madhya Pradesh (supra) it
was observed that the Court cannot reconstruct the story different
from the one propounded by prosecution and convict the accused on
that basis. It is well settled that prosecution can succeed by
substantially proving the story it alleges. It must stand on its own
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legs. It cannot take advantage of weaknesses of defence. In the case
of Juwarsingh Vs. State of Madhya Pradesh (supra), it was observed
that failure to cross-examine does not make the testimony true or
acceptable. If oral testimony of witness is contrary to proved facts,
his evidence might be discarded on that ground. In Tomaso Bruno
and another Vs. State of Uttar Pradesh (supra), it was held that
failure to produce evidence would render the prosecution case
unreliable. In the case of Datar Singh vs. State of Punjab it is
observed that judicial process can only operate on the firm
foundations of actual and credible evidence on record. Mere
suspicion or suspicious circumstances cannot relieve the prosecution
of its primary duty of proving its case against accused beyond
reasonable doubt. The Courts cannot be swayed by sentiments or
prejudice against the person accused of commission of crime. In
Harchand Singh (supra), it is observed that the function of the Court
in a criminal trial is to find whether the person arraigned before it as
the accused, is guilty of the offence with which he is charged. For
this purpose the Court scans the material on record to find whether
there is any reliase and trustworthy evidence upon the basis of which
it is possible to find the conviction of the accused and to hol that he
is guilty of the offence with which he is charged. If in a case the
prosecution leads two sets of evidence, each one of which contradicts
and strikes at the other and shows it to be unrealisable, the result
would necessarily be that the Court would be left with no reliable
and trustworthy evidence upon which the conviction of the accused
might be based. Inevitably the accused would have the benefit of
such situation. Learned counsel for appellant relied upon decision of
Calcutta High Court in case of Habal Shaikh and others (supra) on
the point of identification of accused. In the said decision it was
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observed that the facts which establish identify of accused, are
relevant u/s 9 of Evidence Act. The identification should be held
without much delay inasmuch as early opportunity to identify tends
to minimize the chances of memory of identifying witnesses fading
away by reason of long lapse of time. When no explanation is given
for delay in holding parade, there is room for doubt as to whether
delay in holding parade was in order to enable the identifying
witnesses to see the accused in the police lock up or in the jail
premises and make a note of his features. In the decision of this
Court in the case ofVilas Patil, the Court considered the effect of
identification parade as it was evident that the witness was sitting at
the police station while the accused were in lock-up and there was
reasonable possibility for witness to see the accused before parade.
This would discard evidence of identification. The defence has
contended that when PW-16 Mukesh Bhargav had visited police
station during investigation, the accused was in lock-up. Hence,
there was opportunity for witness to see the accused. However, in
the evidence or in cross-examination, no such cricumstance has been
brought/established to indicate that witness had occasion to see the
accused at police station. In the case of Brijmohan (supra), the
Supreme Court has held that once the investigating officer suspects
that the arrested persons are accused in case, they should be put up
for test identification at the earliest. In Siddanki Ram Reddy (supra),
it was observed that when an attack is made on injured/deceased by
a mob in a crowded place and the eye witnesses had little time to see
the accused, the substantive evidence should be sufficiently
corroborated by a test identification parade held soon after the
occurrence and any delay in holding parade may be held to be fatal
to prosecution. The Court made reference to decision in the case of
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Lalsingh Vs. State of Uttar Pradesh, wherein it was observed that
where witness had only a fleeting glimpse of the accused at the time
of occurrence, delay in holding a test identification parade, has to be
viewed seriously. Learned counsel for accused contends that
although Pawankumar was arrested as suspect in this crime, he was
not put to test identification parade. In the case of Rajesh Jagesha
(supra), the Supreme Court has considered the effect of delay in
holding parade. The Court also noted discrepancies in the parade
with regard to appearance of accused and dummy. The Court also
held that possibility of witnesses having seen accused between date
of arrest and parade cannot be ruled out. Reference was made to
decision of Supreme Court in the case of State of Andhra Pradesh Vs.
M.V.Reddy whereinit was held that unexplained delay in holding the
parade, the evidence cannot be held absolutely reliable. In
Satrughana @ Parida (supra), it was noted that there was delay of
one and half month in holding parade and after the expiry of
maximum permissible period (15 days) for producing the accucsed
before Court for which there was no explanation and there was
nothing on record to show that while taking the accused to and
producing them before Court, identity of accused was not revealed.
It is the duty of prosecution to explain why the identification parade
could not be arranged. In the factual matrix of the present case, the
ratio of the aforesaid decisions would not be applicable. In Ashraf
Shah Vs. State of Maharashtra 37, this Court has dealt with the issue
relating to delay in recording the statements of witnesses. According
to the defence, statement of Neetu Solanki was recorded belatedly
and tailor made to suit the prosecution case. In the decision of
Ganesh Dhavan Patel (supra) it was held that delay in examining
witnesses by investigating officer can on peculiar facts of case,
37 1996-Cr.L.J.-3147
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amount to serious infirmity to prosecution case. Strange conduct in
consistent with human nature and behaviour will affect his
credibility of being an eye witness. In support of the submission that
offence would fall within the purview of Section 304(I) or Section
304(II) of IPC, reliance was placed on the decision of Delhi High
Court in case of Udai Singh Vs. State (supra) and Dharampal and
others Vs. State of Delhi (supra). In Udaisingh's case decided by the
Delhi High Court, the conviction of accused was modified from
Section 302 IPC to 304(1) IPC. It was observed that in deciding the
question whether the offence of culpable homicide amounts to
murder the medical opinion regarding nature of injuries as well as
period after which death takes place are important factors and
depending upon the facts and circumstances of each case. In the
case, the medical opinion as to whether the burn injuries sustained
by the deceased weree sufficient in the ordinary course of nature to
cause death were absent. The opinion of autopsy surgeon was that
death was caused due to shock and secondary infection. In case of
Dharampal (supra), the conviction was altered from 302 to 304(1)
IPC on the ground that accused had no intention to cause death but
had knowledge that acid mixed with liquor would result in such
injuries to stomach as are likely to cause death.
34. Whereas prosecution has placed reliance on the decision in
case of Laxmi Vs. Union of India (supra) wherein guidelines were
issued with regards to usage of acid. Learned Special Public
Prosecutor relied upon the decision in case of Mohamad Farooq
Abdul Gafur and others Vs. State of Maharashtra (supra) on the issue
of identification parade. In the said case there was delay of 45 days
in conducting I.T.parade. The Court observed that it is not such a
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long period to cast any doubt over the evidentiary value of
I.T.parade. Even otherwise T.I.praade does not constitute
substantive eevidence but can only be used for corroboration of
statement in Court. It is primarily meant for the purpose of helping
the investigating agency with an assurance that their progress with
the investigation is proceeding on the right lines. Reference was
made to its earlier decision in the case of Amitsingh
BhikansinghThakur Vs. State of Maharashtra (2007)2-SCC-310
wherein it was observed that if the circumstances are beyond control
and there is some delay, it cannot be said to be fatal to the
prosecution. The facts which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence Act. As a
general rule, the substantive evidence of a witness is the statement
made in Court. The purpose of prior test identification is to test and
strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witness in Court as to the
identity of accused who are strangers to them in the form of earlier
identification proceedings. This rule of prudence is, however, subject
to exceptions, when, for example, the Court is impressed by a
particular witness on whose testimony it can safely rely without such
or other corroboration. He also relied upon the decision in the case
of Ramcharan Gupta (supra) and submitted that all the prerequisites
for holding parade enumerated in this decision were complied.
Reliance was also placed on the decision of Supreme Court in the
case of Hema Vs. State (supra) wherein it was observed that for
certain defects in investigation the accused cannot be acquitted.
Merely on account of some defect in investigation, lapse on the part
of investigating officer, it cannot be a ground for acquittal. In the
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decision delivered by Division Bench of this Court in Hasan Sk
Khannu Rayliwale Vs. State of Maharashtra 2003(105)(4)-Bom.L.R.-
428, the plea of alibi taken by accused was considered. Learned
special public prosecutor relied on observations in para 27 of the
decision where it is observed that it is needless to say that when the
appellant has taken a specific plea of alibi, then burden lies on him to
establish the same. The appellant has not led any evidence to
substantiate his plea of alibi. So in the absence of establishing the
plea of alibi for cogent evidence, necessary consequence of adverse
inference has to be drawn. The Supreme Court in State of Uttar
Pradesh Vs. Devendra Singh (supra) has observed that to discard the
evidence of a witness on the ground that he did not react in any
particular manner is to appreciate evidence in a wholly unrealistic
and unimaginative way. There is not set rule of natural reaction.
Human behaviour varies from person to person. Different people
behave and react differently in different situations. Human
behaviour depends upon the facts and circumstances of each given
case. How a person would react and behave in a particular situation
can never be predicted. Every person who witnesses a serious crime
reacts in his own way. Some are stunned, become speechless and
stand rooted to the spot. Some become hysteric and start wailing.
Some start shouting for help. Others run away to keep themselves as
far removed from the spot as possible. Yet others rush to the rescue
of the victim, even going to the extent of counter attacking the
assailants. Some may remain tight-lipped, overawed either on
account of the antecedents of the assailant or threats given by him.
Each one reacts in his special way even in similar circumstances,
leave alone the varying nature depending upon a variety of
circumstances. Learned special public prosecutor strongly relied on
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judgment of Supreme Court in Ravinder Kumar and another (supra).
The Court while dealing with issue of identification after lapse of
time has observed that the psychological phenomenon that human
memory is very often a conditioned characteristic. Anything which
has any special or peculiar lineament can create an impact on the
human mind lasting long after. While it is true that routine events in
a man's day to day life may not remain in his mind for being
remembered later, any odd or bizarre happenings involving him in
front of him, have the tendency to stick in his mind indelibly. If
there is any cause for him to recollect such events again, they get
refreshed again. That is why he is able to narrate such events with
all details when asked to do so. This applies to all witnesses in
criminal cases involving serious offences. The other aspect dealt by
the Court was in respect to motive by observing that it is generally an
impossible task for the prosecution to prove what precisely would
have impelled the accused to commit murder of a particular person.
All that the prosecution in many cases would point to is the possible
mental element which could have been the cause for murder.
35. As narrated hereinabove, there is sufficient evidence to prove
the offences under Sections 302 and 326(B) of IPC, for which the
appellant-accused has been convicted. The evidence of eye witnesses
of actual incident viz PW-6, PW-7, PW-9 and PW-11 is consistent that
they saw the appellant throwing acid on Preeti and thereafter ran
away. The defence has not been able to discredit the testimony of
these witnesses. PW-14 is the father of Preeti who was with her. He
travelled along with Preeti, Vinodkumar and Sunita Dahiya. The
deposition of the said witnesses is depicted hereinabove. He lodged
the complaint. The complaint was then forwarded to the Magistrate.
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PW-12 carried the victim Preeti, Vinodkumar and Sunita Dahiya to
Gurunanak Hospital. Then Preeti was shifted to Masina Hospital.
PW-18 took the injured to Bhabha Hospital. One of the injured was
PW-14 and the others were Sudeshakumari and Sameer Shaikh.
Clothes of Preeti and her aunt Sunita Dahiya were seized at Masina
Hospital. PW-24 delivered articles to FSL. PW-5 was working as
hamal at Bandra Terminus. He acted as panch witness. Plastic
dabba was recovered from the spot. There was blackish liquid in it.
Soil samples were taken. Map of the spot was drawn. PW-6 showed
the spot. PW-29 went to the spot and drew spot panchanama. PW-
13 ws friendly with Preeti being of her age. She has disclosed the
role of accused in the crime. PW-8 was present as panch at Kurla
Police Station. He identified the accused as the person who was at
the police station. The accused was arrested and his physical search
was conducted. Articles were seized. On 19 th January 2014 PW-4
was called at the police station. The accused disclosed his readiness
to show the place from where and from whom he had purchased the
acid at Narela, Delhi. Police team along with accused proceeded to
Delhi at the place from where the acid was purchased by accused.
PW-15 is the owner of Bhargav Chemical Trading Company from
whom the accused had purchased the acid. It was revealed that the
acid was purchased while son of PW-15 was at the shop. PW-16
then visited police station with register. Test identification parade
was conducted. The accused was identified by PW-6, PW-9, PW-11
and PW-16. PW-19 conducted T.I.parade. He was cross-examined
by defence. However, no infirmities could be pointed out which
would discard the evidence of identification parade. All the
witnesses identified the accused. In the cross-examination nothing is
seen to doubt the identification by the witnesses. There was no
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opportunity for the witnesses to see the accused before T.I.parade
was held. PW-30 was part of the investigating team. PW-36 is the
main investigating officer. PW-31 has also conducted investigation.
The statements of witnesses were recorded by them. Documentary
evidence was collected. Pawankumar was not found connected to
crime. He was discharged. Various investigating officers
investigated the crime. Each has played its role for that part of
investigation. The previous investigation was carried out by Bandra
Railway Police Station. Further investigation was carried out by
DCB, CID. Though it is challenged by defence counsel that
documents are fabricated, no such possibility is shown even to doubt
the documents and the investigation.
36. Medical evidence is material piece of corroborative evidence
regarding injuries caused to the injured witnesses and Preeti as well
as cause of death of Preeti. It is clinching piece of evidence as
regards old healed injury scars on the hands and chest of the
accused. PW-26 was at Bhabha Hospital. She examined PW-14,
Sudesshakumari and PW-6. She noticed superficial to deep burn
over upper back, over left and right hands and left thigh of
Amarsingh Rathi. Sudeshakumari was also deep burns over left arm
and forearm and left thigh. PW-6 sustained burn injuries over both
the forearms and left shoulder. PW-20 has stated that injuries can be
caused by throwing acid. The defence had tried to point out the
discrepancies in the sequence of examination of patients. However,
the difference in sequence of examination of injured and respective
MLC number, cannot falsify the examination and injuries sustained
by the aforesaid persons. Thus it was established that Sameer,
Sudeshakumari and Amarsingh Rathi were injured out of acid burns.
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Preeti was initially treated at Gurunanak Hospital. Thereafter she
was shifted to Masina Hospital. PW-22 treated her. Preeti had
chemical facial burn injuries. History was recorded vide Exhibit-107.
She was then referred to Bombay Hospital. PW-27 is the plastic
surgeon in Masina Hospital. He treated Preeti from 2 nd May 2013 to
18th May 2013. The findings mentioned in the report were co-related
with clinical findings and other reports. PW-20 was at Bombay
Hospital when Preeti was admitted with the history of acid burns
brought from Masina Hospital. Preeti was under care of Dr.Ashok
Gupta, PW-28, since her admission. A team of doctors were treating
Preeti. PW-20 issued certificate Exhibit-99 in respect of treatment to
Preeti. She was cross-examined to elicit that medical treatment
given to Preeti was not proper and the record was not maintained
properly in respect of her treatment. No medical negligence was
brought on record. Prosecution brought complete treatment of
Preeti on record. PW-25 conducted post mortem of dead body of
Preeti on 1st June 2013. He noticed injuries. The injuries on face
and chest were were sufficient to cause death. He opined provisional
cause of death as evidence of septicemia with pulmonary
consolidation with pulmonary haemorrhage with cronic passive
venous congestion liver in a hospitalized case of superficial to deep
burns. CA report and histo-pathology with memorandum of post
mortem examination, was sent to obtain final cause of death. PW-25
and Dr.Waghmare gave final cause of death as complication due to
acid burns and issued Exhibit-130. He was extensively cross-
examined. PW-25 admitted that sulphuric acid is corrosive poison
and that lungs were damaged due to inhalation of corrosive poison.
The lungs were damaged. Cardiac pulmonary arrest was the cause
of death as a result of sepsis and multiple organ failure. From the
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post mortem report and the evidence of PW-25 the injuries found on
the body of Preeti were as follows :
1) Over face and neck : Deep burns on anterior part of face of
size 17x16 cm with surrounded zone of inflamation parts
involved are forehead, both eyes, nose, right and left check,
upper and lower lips upto the chin, right ear, upper part of
neck total burn area of face is 7%. Sueprficial burns present
over neck region at few places;
2) On chest and abdomen multiple areas of superficial to deep
burns present over upper part of chest more prominent on left
side spread over area of 12x11 cm extending upto upper part
of anterior abdomen. Total area of burn is 1%;
3) Right upper limb : Deep burns on right upper limb extending
from shoulder to right hand. Full thickness burn present over
whole area of extensor aspect and partially on flexor aspect.
Total area of burn is 7%;
4) Left upper limb : Superficial to deep burn on left upper arm
seen over area of 5x5 cm (superficial) on left mid arm, left
forearm 3x3 cm, deep burns, left mid forearm region shows
deep burn area of 2x2 cm with granulation and slough. Left
forearm, flexor aspect extending upto wrist area of 8x6 cm
present, left hand area of 7x5 cm on dorsal aspect present.
Total area of burn is upto 3%;
5) Right lower limb : Superficial to deep burn on right thigh
lower part extending to knee joint of area 6x4 cm, total area of
burn is 1%;
6) Left lower limb : Superficial burn injury on left lower limb
over knee of size 5x2 cm present. Total area of burn is 1%;
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7) Back : Deep burns present on posterior aspect of neck spread
over area area of 8x6 cm reddish in colour and deep burn
present over right scapular region of size 8x6 cm and over mid
scapular region of 20x5 cm. Total area of burn is 6%.
Margins shows zone of inflammation eroded raw surface
shows granulation tissue with yellowish, slough at places;
8) Perinium and genitalia : total area of burn 0%. No injuries.
9) Total burn injuries all over body is of 26%. Dermo epidermal,
superficial to deep, all these burn injuries shows zone of
infllamation, presence of reddish granulation at areas of burns
and yellowish slough at places present.
10) Injury nos.1 and 2 as mentioned above were in vital
parts of the body. Those were sufficient to cause death of the
person.
11) He also noticed surgical injuries which he has mentioned
separately in PM notes of column no.17, in the separate sheets
attached with the memorandum of Pm;
12) On internal examination the internal injuries noticed are
mentioned by him in column no.20 of memorandum of PM.
Those are Laryngial edema and congestion present, Necrotic
changes and erosions of trachea with haemorrhagic luminal
surface and tracheo-esophageal fistula. There was congestion
and edema of lungs with interparenchuymal haemorrhage and
consolidation;
13) In abdomen 150 cc yellowish exudative fluid within
peritonial cavity. In buckle cavity. Coagulative necrosis of the
oral mucosa, upper and middle part of esophagous with
abraded raw (fresh) haemorrhagic mucosal surface. In
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stomach there were stress ulcers at places. Liver was
congested. Adrenals and spleen were congested and
harmorrhagic. Both kidneys congested."
37. Medical examination of the accused was conducted by PW-21
Dr.Gajanan Chavan with Dr.Thube and Dr.Niturkar on 20 th January
2014. The injuries sustained by the accused are disclosed
hereinabove. The said witness has stated that injuries no.1 to 7
appeared to be burn injuries, caused by corrosive substance of age 6
months to 12 months on the date of examination. He opined on the
basis of appearance, distribution, extent and location of scars the
possibility of spilt of corrosive substance as a cause of these injuries.
The appearance without trickling marks is most likely to be caused
by secondary drops after throwing corrosive liquid. The team of
doctors prepared a report Exh.102 written by Dr.Tube and signed by
PW-21 and two other doctors in team. On 14 th February 2014 as per
the query of ACP vide Exh.103 the team of doctors opined that
concentrated sulphuric acid comes under corrosive substance/liquid
category of poison. The defence tried to show that the medical
examination of accused was defective and doubtful as the time of the
examination of the accused is not mentioned in Exh.102. The
witness answered that it would be in the afternoon. It is challenged
that the corrosive liquid was not shown to the doctors regarding
which the opinion was sought. However, PW-21 maintained that all
three of them decided the report as per their examination.
Prosecution could establish that the old healed injuries scars present
on the hands and chest of the accused were caused due to corrosive
substance was probably secondary drops of corrosive substance,
liquid.
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38. Thus, there is sufficient evidence to show the involvement of
appellant-accused in the crime. In the light of the evidence of PW-25
and the evidence of eye witnesses, the submission of learned counsel
for appellant that offence would not fall within the purview of
murder and that it would be at the most culpable homicide not
amounting to murder, is devoid of merits. Apart from the aforesaid
evidence, the documentary evidence adduced by the prosecution
forms the significant part of prosecution case. Exhibit-28 pertains to
seizure of clothes of Preeti and Sunita Dahiya. Exhibit-34 is
panchanama of de-sealing and re-sealing of Article-C seized on 2 nd
May 2013. The said article was containing corrosive liquid hurled at
Preeti. It was sent to FSL for CA. PW-5, PW-6 and PW-20 identified
the article as it was seized under spot panchanama. Exhibits-41 and
42 are statement of accused and discovery of source of sulphuric
acid. Exhibit-45 is the spot panchanama. Exhibits-49 and 57 are
arrest panchanama of the accused. Exhibit-61 is the inquest
panchanama. Exhibits-64,64,65 and 66-1 to 66/3, Exhibits-67 and
68 are the documents regarding travel of victim and her relatives
from Hazrat Nizamuddin Railway Station Delhi to Bandra Terminus
at Bandra. Exhibit-74 is a memo given to carry injured to Bhabha
Hospital. Exhibits-77 and 77-A are FIR and format of FIR. Exhibits-
80, 81 and 82 are are license for acid sale held by Ramkumar and
Mukesh Bhargav and Exhibit-163 is the entry of acid sample given to
accused. Exhibit-88 is station diary dated 2 nd May 2013 which
discloses the information of incident dated 2 nd May 2013 and the FIR
lodged. It corroborates the oral testimony of PW-14 and PW-17.
Exhibit-91 is the memo for medical examination of other injured
persons. Exhibit-96 is T.I.parade. Exhibits-101,102,103 and 104 is
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medical examination of the accused. Exhibits-107, 108, 110, 138,
148 and 152 are the papers from Masina Hospital in respect of
treatment to Preeti from 2nd May 2013 to 18th May 2013. Exhibits-
203 and 154 are medical treatment documents in Bombay Hospital
and Exhibit-124 is the memorandum of post mortem. Exhibit-168 is
reservation chart of Garibrath Express and Exhibits-175, 176, 177,
178, 179 are station diary entries carrying accused to J.J.Hospital for
medical examination. Exhibit-204 is the sim card purchased by
accused. All these documents corroborate the ocular testimony of
witnesses examined by prosecution. Considering the nature of
evidence, the submissions advanced by defence counsel are devoid of
merits.
39. The evidence adduced by the prosecution in the form of FIR,
station diary entry, motive and intent of the accused, the facts
discovered u/s 27 of Indian Evidence Act, T.I.parade, spot
panchanama, inquest panchanama, entries on the person of accused,
are the major points which supports the case of prosecution.
Sulphuric acid is a corrosive poison. This chemical is unique because
it not only causes chemical burns but also secondary thermal burns
as a result of dehydration. This dangerous chemical is capable of
corroding skin, metal and even stone in some cases. If comes direct
contact with eyes, it can cause permanent blindness. It destroyes
outer skin and enters in the flesh under the skin. In case of
inhalation it causes life threatening accumulation of fluid in the
lungs i.e. pulmonary edema. Severe exposure to sulphuric acid can
result into long term damage. There is overwhelming evidence on
record to prove not only the credence of evidence but the nature of
offence. The injuries were not only causing death but would have
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caused permanent dis-figurement despite post medical treatment.
The photographc Exhibit-154 depicts the effect of acid. The CA
report regarding clothes of Preeti and Sunita showed presence of
acid. Exhibit-120 regarding hair which was collected after the death
of Preeti shows the acid. Article-C was with brownish liquid which
was concentrated sulphuric acid.
40. the accused could not explain old healed injury scars on hands
and chest. The inquest panchanama showed burn injuries at various
parts of body. The contradictions and omissions brought on record
by defence are not sufficient to discard the evidence on record, which
supports prosecution case. Looking at the factual aspects, the
evidence on record, it is implicit that the accused was responsible for
committing murder. The purpose of amendment to Section 326 is to
deter the accused from causing acid burns or acid attack. In the
recent decision of the Supreme Court in the case of Omanakattan
Vs. State of Kerala 38, it was observed that acid is undoubtedly a
corrosive substance within the meaning of Section 326 of IPC. The
victim remained hospitalized for more than fifty days. It would be
wholly unrealistic to postulate that even with such extensive acid
burns injuries from head to thigh on the left side of his body and
long drawn hospitalization, the victim may not have in severe bodily
pain for more than twenty days. It was also observed that the act of
causing grievous hurt by use of acid by this very nature is gruesome
and horrendous, which apart from causing severe bodily pain, leaves
the scars and untold permanent miseries for the victim. The
legislature having taken note of gravity of such offence, by way of
Act No.XIII of 2013, inserted sections 326(A) and 326(B) of IPC
38 Criminal Appeal No.873 of 2019 decided on 9-5-2019
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providing higher punishment with minimum imprisonment for the
offence of voluntarily causing grievous hurt by use of acid and
voluntarily throwing or damaged to throw acid.
41. We have observed hereinabove that prosecution has
established its case beyond doubt and the conviction of appellant-
accused u/s 302 of IPC thus deserves to be confirmed. The question
now which falls for consideration is whether capital punishment
awarded by the Trial Court deserves to be confirmed. The Trial
Court while awarding death penalty has observed that this is a rarest
of rare case as enunciated in the case of Bachan Singh Vs. State of
Punjab (supra). The Court has also referred to the decision of
Machhi Singh Vs. State of Punjab (supra) wherein it was observed
that reason why the community as a whole does not endorse the
humanistic approach reflected in death sentence in no case doctrine
are not far to seek. In the first place, the very humanistic edifice is
constructed on the foundation of reverence for life principle. When a
member of the community violates this very principle by killing
another member, the society may not feel itself bound by the
shackles of this doctrine. The Court also referred to the decision in
the case of Dhananjay Chatterjee Vs. State of West Bengal (1994)2-
SCC-220, The State of Madhya Pradesh Vs. Munna Choubey
(2005)2-SCC-710, Gurvail Singh @ Gala and another Vs. State of
Punjab (2013)2-SCC-713 and Ajitsingh Harnamsingh Gujral Vs. State
of Maharashtra (2011)14-SCC-401. Jashubha Gohil Vs. State of
Gujarat, Mahesh Vs. State of Madhya Pradesh (1987)2-SCC-710,
Devendra Pal Singh Vs. State (2002)5-SCC-234, Maniappen Vs. State
of Tamilnadu, State of Rajasthan Vs. Vinodkumar (2012)6-SCC-770.
The Trial Court felt that aggravating circumstances which would
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invite the capital punishment in the present case, were that offence
was committed in preplanned manner, it was exceptionally cruel
attitude and involves extreme perversity, ante-social nature of crime,
shocking the conscience of the society. Whereas, the mitigating
circumstances put forth by the accused were that he is of young age.
The age of accused was 23 years at the time of commission of crime.
There was possibility to reform and socio-economic status.
42. Learned Special Public Prosecutor has relied upon the decision
in the case of Mukesh and others Vs. State of Delhi (supra) to
support imposition of capital punishment in the present case. The
Supreme Court in the said case has analyzed several decisions
dealing with death penalty and in paragraph 508 it has observed that
we have a responsibility to set good values and guidance for
posterity. Crime against women not only affects women's self esteem
and dignity but also degrades the pace of societal development. The
gruesome incident in the capital and the death of young women will
be an eye opener for the mass movement to end violence against
women and respect for women and her dignity and sensitizing public
at large on gender justice.
43. In case of Rajendra Wasanik (supra) (Review Petition Nos.306-
307/2013) it was held by the Supreme Court in paragraph 75 that it
may be mentioned, in conclusion, that there is really no reason for
the Trial Judge to be in haste in awarding a sentence in a case where
he might be considering death penalty on the ground that any other
alternative option is unquestionably foreclosed. The convict would
in any case remain in custody for a fairly long time since the
minimum punishment awarded would be imprisonment for life.
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Therefore, a Trial Judge can take his time and sentence the convict
after giving adequate opportunity for the prosecution as well as for
the defence to produce material, as postulated in Bachan Singh so
that the possibility of awarding life sentence is open to the Trial
Judge as against the death sentence. It must be appreciated that a
sentence of death should be awarded only in the rarest of rare cases,
only if an alternative option is unquestionably foreclosed and only
after full consideration of all factors keeping in mind that a sentence
of death is irrevocable and irretrievable upon execution. It should
always be remembered that while the crime is important, the
criminal is equally important insofar as the sentencing process is
concerned. In other words, the Courts must make assurance double
sure. In paragraph 79 it was observed that in the said case that the
Sessions Court and the High Court as well as Supreme Court did not
take into consideration the probability of reformation, rehabilitation
and social re-integration of appellant into society. Indeed no
material or evidence was placed before the Courts to arrive at any
conclusion in this regard one way or the other and for whatever it is
worth on the facts of the case. The prosecution was remiss in not
producing the available DNA evidence and the failure to produce
material evidence must lead to an adverse presumption against the
prosecution and in favour of the appellant for the purposes of
sentencing. The Court took into consideration the material on record
including over all personality, subsequent events to commute the
sentence of death awarded to the accused and directed that he
should not be released from custody for rest of his normal life. While
deciding the said review, the Supreme Court has analyzed principles
laid down in several decisions of the Supreme Court including the
decision in the case of Mukesh and others Vs. State of Delhi (supra).
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44. In case of Shankar Kisanrao Khade (supra), the Supreme Court
has referred to the decision in the case of Mohammad Mannan Vs.
State of Bihar wherein the factors for awarding death sentence, both
in the negative and positive, were considered. It was held that
number of persons killed by the accused is not a decisive factor nor is
the mere brutality of the crime decisive. However, if the brutality of
the crime shocks the collective conscience of the community, one has
to lean towards the death penalty. In paragraph 122 the Court has
laid down the broad analysis and referred to decisions in the case of
Dhananjay Chatterjee and other decisions. It would be relevant to
quote paragraph 123 of the said decision :
"123. However, what is more significant is that there
are cases where the factors taken into consideration for
commuting the death penalty were given a go-by in
cases where the death penalty was confirmed. The
young age of the accused was not taken into
consideration or held irrelevant in Dhananjay Chatterjee
aged about 27 years, Jai Kumar aged about 22 years
and Shivu aged about 20 and 22 years while it was
given importance in Amit V State of Maharashtra,
Rahul, Santosh Kumar Singh, Rameshbhai Chandbhai
Rathod (2) and Amit V State of U.P. The possibility of
reformation or rehabilitation was ruled out, without any
expert evidence, in Jai Kumar, B.A. Umesh and Mohd.
Mannan in much the same manner, without any expert
evidence as the benefit thereof was given in Nirmal
Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal
Shivbalakpal, Rahul and Amit V. State of U.P. Acquittal
or life sentence awarded by the High Court was
considered a not good enough reason to convert the
death sentence in Satish, Ankush Maruti Shinde and
B.A.Umesh, but it was good enough in State of T.N. V
Suresh, State of Maharashtra V. Suresh, Bharat Fakira
Dhiwar and Santosh Kumar Singh. Even though the
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crime was not premeditated, the death penalty was
confirmed in Molai notwithstanding the view expressed
Akhtar, Raju and Amrit Singh."
In paragraph 30 of the aforesaid decision reference is made to the
decision in the case of Dhananjay Chatterji Vs. State of West Bengal
(supra), which was considered by the Trial Court while imposing
death penalty. Reference is also made to the earlier decision in the
case of Rajendra Wasanik Vs. State of Maharashtra which was
reviewed subsequently as stated hereinabove. Paragraph 49 refers to
the principles for awarding sentence laid down in the case of Bachan
Singh and Macchi Singh. In paragraph 124 it was observed that
Bachan Singh is more than clear that crime is important but criminal
is also important this unfortunately has been overlooked in several
cases in the past and even in some of the cases referred to above. It
is these individualized sentencing that has made this Court worry in
the recent past of imposing death penalty and instead sentencing it
for fixed term of sentence exceeding fourteen years or awarding
consecutive sentences.
45. In the case of Santosh Bariyar (supra), it was observed that
another aspect of rarest of rare doctrine which needs serious
consideration is interpretation of latter part of the dictum that ought
not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed. Bachan Singh suggested
selection of death punishment as the penalty of last resort when
alternative punishment of life imprisonment will be futile and serves
no purpose. In paragraph 157 it was observed that while imposing
any sentence on the accused the Court must also keep in mind the
doctrine of rehabilitation. This considering Section 354(3) of the
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Code, is especially so in the cases where the Courlt is to determine
whether the case at hand falls within the rarest of rate case. In
paragraph 158 it was observed that reasons assigned by the Courts
do not satisfy Bachan Singh test. Section 354(4) of the Code
provides for an exception. General rule of doctrine of
proportionality, therefore, would not apply. We must read the said
provision in the light of Article 21 of Constitution of India. The law
laid down by Bachan Singh and Macchi Singh interpreting Section
354(3) of the Code should be taken to be a part of our constitutional
scheme. In paragraph 172 it was observed that we have previously
noted that judicial principles for imposition of death penalty are far
from being uniform. Without going into the merits and de-merits of
such discretion and subjectivity we must nevertheless reiterate the
basic principle stated repeatedly by this Court, that life imprisonment
is the rule and death penalty an exception. Each case, therefore,
must be analyzed and the appropriateness must be determined on
the case by case basis when death sentence not be awarded except in
the rarest of rare case where reform is not possible.
46. Similarly, in case of Sham Singh@ Bhima (2017)11-SCC-265,
similar principles were enunciated. In case of Gudda @
Dwarkendra Vs. State of Madhya Pradesh39, in paragraph 31 and
32, it is observed as follows :
"31. As stated above, on one hand the crime is
premeditated in respect of the deceased husband, while
on the other, no motive or pre-orchestration could be
culled out for the other two deceased persons. The two
murders seem to have translated due to his sudden
3 9 (2013)16-SCC-596
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realisation and extreme fear of being caught for the
murder of Sunil Gupta and also, to save himself from
being shunned by the society. Having said so, the
brutality envisaged in the premeditated murder of Sunil
Gupta alone, in the light of present facts, does not inspire
confidence so as to place it in the category of "the rarest
of the rare". Further, the appellant is a young man of
about 35 years and neither does he have any criminal
antecedents nor is it stated that he is or has been an anti-
social element. The future possibilities of his reform also
cannot be ruled out.
32. In a civilised society - a tooth for a tooth and an
eye for an eye ought not to be the criterion to clothe a
case with "the rarest of the rate" jacket and the courts
must not be propelled by such notions in a haste
resorting to capital punishment. Our criminal
jurisprudence cautions the courts of law to act with
utmost responsibility by analysing the finest strands of
the matter and it is in that perspective that a reasonable
proportion has to be maintained between the brutality of
the crime and the punishment. It falls squarely upon the
court to award the sentence having due regard to the
nature of offence such that neither is the punishment
disproportionately severe nor is it manifestly inadequate,
as either case, would not subserve the cause of justice to
the society. In jurisprudential terms, an individual's right
of not to be subjected to cruel, arbitrary or excessive
punishment cannot be outweighed by the utilitarian
value of that punishment.
47. In the case of Rajesh Kumar Vs. State (NCT of Delhi)40, the
Supreme Court has observed that from the fact that accused can be
rehabilitated in the society and is capable of being reformed, since
the State has not given any evidence to contrary, is certainly a
mitigating circumstance which the High Court has failed to take into
consideration. The High Court has also failed to take into
4 0 (2011)13-SCC-706
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consideration that the accused is not a continuing threat to the
society and in the absence of any evidence to the contrary, the High
Court was influenced with the brutality in the manner of committing
the crime. In Mohinder Singh Vs. State of Punjab41, it was
observed in paragraph 25 that it is well settled law that awarding of
life sentence is rule and death is exception. The application of rarest
of rare case principle is dependent upon and differs from case to
case. However, the principles laid down and reiterated in various
decisions of Supreme Court show that in a deliberately planned
crime, execution meticulously in a diabolic manner, exhibits
inhuman conduct in a ghastly manner, touching the conscience of
everyone and thereby disturbing the moral fibre of the society, would
call for imposition of the capital punishment in order to ensure that
it acts as a deterrent. It was further observed that probability of the
offender's rehabilitation and reformation is not foreclosed. In
paragraph 37 it was observed that various principles laid down in the
decision in case of Swamy Shraddananda Vs. State of Karnataka,
Santosh Kumar Bariyar Vs. State of Maharashtra and other decisions,
apart from the principles laid down in Bachan Singh and also the
requirement of a balance sheet of aggravating and mitigating
circumstances, the following principles are required to be borne in
mind; such as : (a) a conclusion as to the rarest of rare aspect with
respect to a matter shall entail identification of aggravating and
mitigating circumstances relating both to the crime and the criminal;
(b) the expression `special reasons' obviously means `exceptional
reasons' founded on the exceptionally grave circumstances of the
particular case relating to the crime as well as the criminal; (c) the
decision in Ravji Vs. State of Rajasthan, which was subsequently
followed in other cases, wherein it was held that it is only
4 1 (2013)3-SCC-294
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characteristics relating to crime, to the exclusion of the ones relating
to criminal, which are relevant to sentencing in criminal trial, was
rendered per incuriam qua Bachan Singh in the decision in Santosh
Kumar Bariyar; (d) public opinion is difficult to fit in the rarest of
rare matrix. People's perception of crime is neither an objective
circumstance relating to crime nor to the criminal. Perception of
public is extraneous to conviction as also sentencing, at lest in capital
sentencing according to the mandate of Bachan Singh and Santosh
Kumar Bariyar; (e) capital sentencing is one such field where the
safeguards continuously take strength from the Constitution; (f) the
rarest of rate case comes when a convict would be a menace and
threat to the harmonious and peaceful coexistence of the society.
The crime may be heinous or brutal but may not be in the category
of the rarest of rate case. There must be no reason to believe that
the accused cannot be reformed or rehabilitated and that he is likely
to continue criminal acts of violence as would constitute a continuing
threat to the society; (g) life sentence is the rule and the death
penalty is the exception. The condition of providing special reasons
for awarding death penalty is not to be construed linguistically but it
is to satisfy the basic features of a reasoning supporting and making
award of death penalty unquestionable; (h) the circumstances and
the manner of committing the crime should be such that it pricks the
judicial conscience of the Court to the extent that the only and
inevitable conclusion should be awarding of death penalty.
In the case of Gurvail Singh @ Gala and another Vs. State of
Punjab (supra), again the Supreme Court has considered the
principles underlining imposition of death sentence. In paragraph 19
it was held that the age definitely is a factor which cannot be
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ignored, though not determinative factor in all fact situation.
Probability that accused person could be reformed and rehabilitated
is also a factor to be borne in mind. To award death sentence, the
mitigating circumstance (crime test) have to be fully satisfied and
there should be no mitigating circumstance (criminal test) favouring
the accused. Even if both the tests are satisfied as against the
accused, even then the Court has to finally apply the rarest of rare
cases test, which depends on the perception of the society and not
judge-centric i.e. whether the society will approve the awarding of
death sentence to certain types of crime or not. While applying this
test, the Court has to look into variety of factors like society's
abhorrence, extreme indignation and antipathy to certain types of
crimes like rape and murder of minor girls, especially intellectually
challenged minor girls, minor girls with physical disability, old and
infirm women with those disabilities etc. The Courts award death
sentence because situation demands due to constitutional
compulsion, reflected by the will of the people and is not judge-
centric.
48. In the recent decision of Supreme Court in the case of
Yogendra @ Jogendra Singh Vs. State of Madhya Pradesh 42, the
Court considered imposition of capital sentence upon a person who
was convicted for the offences under Sections 302, 326A) and
326(B) of IPC. The case related to the conviction for the murder of
victim by pouring acid on her. In paragraph 8 it was observed that
question remains to be considered is whether there are special
reasons as to why the appellant should be sentenced to death. The
term `special reasons' undoubtedly means reasons that are one of a
4 2 Criminal Appeal Nos.84-85/2009 decided on 17-1-2019
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special kind and not general reason. In the present case, there is one
factor which might warrant imposition of death sentence, as
vehemently urged by the State. That reason is that the appellant
committed the crime when he was out on bail in another case where
he has been convicted for murder. In paragraph 9 it was observed
that the question related to the appellant being disappointment in his
relation with the deceased who he believed to have been deserted
him. The circumstance of the case and particularly the choice of acid
do not disclose a cold blooded plan to murder the deceased. The
Court took into consideration the observations in Bachan Singh case
and Macchi Singh case and observed that there is no particular
depravity or brutality in the acts of appellant that warrants a
classification of this case as rarest of the rate.
49. In Bachan Singh Vs. State of Punjab (supra), which is a
guiding judicial pronouncement for considering the imposition of
capital punishment and which has been followed in various
decisions, the Supreme Court in paragraph no.163 has observed as
follows :
"163. Another proposition, the application of which, to
an extent is affected by the legislative changes, is No.
(v). In portion (a) of that proposition, it is said that
circumstances impinging on the nature and
circumstances of the crime can be brought on record
before the pre-conviction stage. In portion (b), it is
emphasised that while making choice of the sentence
under Section 302, Penal Code, the Court is principally
concerned with the circumstances connected with the
particular crime under inquiry. Now, Section 235(2)
provides for a bifurcated trial and specifically gives the
accused person a right of pre-sentence bearing, at which
stage, he can bring on record material or evidence,
which may not be strictly relevant to or connected with
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the particular crime under inquiry, but nevertheless,
have consistently with the policy underlined in Section
354(3), a hearing on the choice of sentence. The
present legislative policy discernible from Section
235(2) read with Section 354(3) is that in fixing the
degree of punishment or making the choice of sentence
for various offences, including one under Section 302,
Penal Code, the Court should not confine its
consideration "principally" or merely to the
circumstances connected with the particular crime, but
also give due consideration to the circumstances of the
criminal.
In paragraph 206, the Court has laid down mitigating circumstance
for imposing death penalty, which are as follows :
"206. ... ... ...
Mitigating circumstances : In the exercise of its
discretion in the above cases, the Court shall take into
account the following circumstances :
(1) That the offence was committed under the
influence of extreme mental or emotional disturbance;
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death;
(3) The probability that the accused would not
commit criminal acts of violence as would constitute a
continuing threat to society;
(4) The probability that the accused can be reformed
and rehabilitated. The State shall by evidence prove
that the accused does not satisfy the conditions (3) and
(4) above;
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(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence;
(6) That the accused acted under the duress or
domination of another person;
(7) That the condition of the accused showed that he
was mentally defective and that the said defect impaired
his capacity to appreciate the criminality of his conduct."
In paragraph 207 it was observed that these are undoubtedly
relevant circumstances and must be given great weight in
determination of sentence. Some of these factors like extreme youth
can instead be of compelling importance. In several States of India,
there are in force special enactments, according to which a child,
that is a person who at the date of murder was less than 16 years of
age, cannot be tried, convicted and sentenced to death or
imprisonment for life for murder, not dealt with according to the
same criminal procedure as an adult. The special acts provide for a
reformatory procedure for such juvenile offenders or children. There
are numerous other circumstances justifying the passing of the
lighter sentence, as there are countervailing circumstances of
aggravation. Similar view was expressed in the case of Channulal Vs.
State of Chattisgarh (supra) (Criminal Appeal No.1482-1483/2018),
Sangeet and another Vs. State of Haryana (2013)2-SCC-452, Ajay
Pandit Vs. State of Maharashtra (2012)8-SCC-43.
50. The Trial Court relied on collective conscience to hold that the
appellant deserves death penalty. The Trial Court has also relied on
the crime test to hold that the case is rarest of rare while ignoring the
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criminal test, as laid down in several decision referred to
hereinabove. There was nothing to indicate that the accused was
beyond reformation and rehabilitation, as mandated in the case of
Bachan Singh and other cases. The mitigating circumstance that the
accused was of young age at the time of commission of offence, was
ignored by the Trial Court. In the circumstances, although
conviction of the accused can be confirmed, the death sentence will
have to be commuted to imprisonment for life.
51. Considering the mitigating circumstances while awarding
death penalty, as enunciated in the case of Bachan Singh (supra),
which included whether the offence was committed under the
influence of extreme mental or emotional disturbance, the age of
accused; if the accused is young or old, he shall not be sentenced to
death, the probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat to society,
the probability that the accused can be reformed and rehabilitated,
re to be considered. In the present case, the Trial Court has not
applied its mind to the aforesaid factors. The accused was young boy
aged about 23 years. There is no past criminal record. The
mitigating circumstances reflected as referred to in the aforesaid
decision, were not considered in proper perspective by the Trial
Court. Taking into consideration over all circumstances, we do not
find that present case can be termed as "rarest of the rare" case and
hence the appellant do not deserve death penalty. Hence, the
sentence of death penalty is required to be set aside while confirming
the conviction.
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52. Accordingly, we pass following order :
ORDER
(a) Criminal Appeal No.139 of 2017 is partly allowed;
(b) The sentence of conviction for the offences under Section 302 of IPC and u/s. 326(B) of IPC imposed by Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai, in Sessions Case No.311 of 2014, dated 8th September 2016 is confirmed;
(c) The impugned judgment and order passed by learned Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai, in Sessions Case No.311 of 2014, dated 8 th September 2016, is modified by setting aside the sentence of death penalty awarded for conviction u/s 302 of IPC and commuted to sentence of imprisonment for life;
(d) Criminal Appeal No.139 of 2017 and Criminal Confirmation Case No.3 of 2016 are disposed off.
(PRAKASH D. NAIK, J.) (B.P.DHARMADHIKARI, J.) MST ::: Uploaded on - 12/06/2019 ::: Downloaded on - 13/06/2019 03:57:21 :::