Delhi District Court
State vs Nazeer, S/O Allah Mehar, on 3 February, 2012
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE-02 : (NORTH EAST) :
KARKARDOOMA COURTS : DELHI
SC No.30/11
FIR No.285/10
PS : New Usman Pur
U/s 308 IPC
State Versus Nazeer, S/o Allah Mehar,
R/o Kishore Ka Makan,
Main Service Road, Usmanpur, Delhi
Case assigned to Sessions on.: 06.06.2011.
Arguments concluded on. : 28.01.2012.
Date of judgment. : 03.02.2012.
:JUDGMENT:
1. The above named accused was booked by SHO PS New Usman Pur Under Section 308 IPC with the allegations that on 07.09.2010 at about 11.00 p.m in gali near Saini Usmanpur, he threw acid like thing on Arman aged 5 years with such intention or knowledge and under such circumstances, that if by the said act he had caused the death of said Arman, he would be guilty of culpable homicide not amounting to murder and also threw acid like thing on Imrana and caused injuries to her. State Vs. Nazeer Page No. 1 of pages 36
2. FACTUAL MATRIX:-
It is the case of the prosecution that on 07.9.2010 on receipt of DD No.44-A at Police Station New Usman Pur regarding throwing of acid on a lady and a child at H. No. 999, near Saini Halwai Ki Dukan, 2nd Pusa, SI Ratno Oraon alongwith Ct. Manoj reached at the spot where he came to know that the injured persons had already been removed to G.T.B. Hospital. He along with Ct. Manoj went to the said hospital where MLCs No.A-4166/10 and MLC No.B-4177/10 of the injured Imrana and Arman respectively were obtained by the IO and on declaring fit for statement, IO recorded statement of Imrana in which she alleged that on 07.09.2010 at about 11.00 p.m she alongwith her son Arman was coming back to her rented home after purchasing some goods and accused Nazeer (who after the death of her husband was living with her for the last about one year and for the last 2/3 days they were having quarrel over drinking of liquor and who also threatened her to spoil her face if she would not allow her State Vs. Nazeer Page No. 2 of pages 36 to drink) suddenly came to Saini Halwai Wali Gali near F-999, Dusra Pusta and thew acid like thing over her and her son Arman.
Upon the statement of complainant Imrana alongwith the MLCs IO found accused Nazeer to have committed offence punishable U/s 308 IPC and accordingly IO prepared rukka and got the FIR registered while sending Ct. Manoj to PS New Usman Pur, who got registered the case U/Sec.308 IPC. Thereafter, searched for accused Nazeer was made but he could not be found. During investigation at the instance of complainant, IO prepared the site plan. Then on transfer of SI Ratno Oraon, the case file was entrusted to SI Girish Raturi for further investigation. On 01.04.2011 SI Staypal arrested the accused Nazeer S/o Allah Mehar, recorded the statements of witnesses and then accused was sent to the judicial custody. Then, the result on the MLCs of injured persons were obtained which came as "Grievous Injury" on the both the MLCs.State Vs. Nazeer Page No. 3 of pages 36
3. Since the offence alleged against the accused person is exclusively triable by the court of sessions, so after supplying copies etc., the case was committed to Sessions and by way of assignment the case was received in this court.
4. After hearing the rival submissions of both the sides, a charge U/Sec.308/324 IPC was framed against the accused to which he pleaded "not guilty" and claimed trial.
5. In its support, the prosecution has examined as many as 13 witnesses, out of them PW-3, PW- 4, PW-7, PW-8, PW-10 & PW-11 were the formal/official witnesses and as such they do not require elaborate discussion. PW-2 and PW-5 are the expert/ medical witnesses. The rest of the witnesses, i.e. PW-1, PW-6, PW-9, PW-12 and PW-13 are material witnesses.
6. FORMAL WITNESSES:-
PW-3 ASI R.P. Pandey, the duty officer has proved the computerized copy of FIR no.285/10 Ex. PW 3/A by State Vs. Nazeer Page No. 4 of pages 36 producing the original of the same.
During cross examination he stated that Ct. Manoj had remained with him for about half an hour. He conceded that Ex.PW3/A does not bear his signatures nor he obtained the signatures of computer operator on the FIR. He denied that FIR is ante dated and ante time or that he had not prepared any rukka.
PW-4 ASI Satbir (the Incharge of PCR Baker 47 at the relevant time) deposed that on 07.09.2010 at about 11.14 p.m he received a call regarding throwing of acid on a lady and a child, to which he reached at the spot i.e. near Sani Halwai, Second Pusta, where many persons were gathered. He saw one lady and a child in burn condition and they were having acid burn on their bodies. He took them to GTB Hospital and admitted them there. His statement was recorded by the IO.
During cross examination he stated that local police met him after about one hour of admitting the patient in the hospital. No public persons accompanied them to the State Vs. Nazeer Page No. 5 of pages 36 hospital. When he reached at the spot, there was gathering of about 80-100 persons. Local police met him on the day of recording of statement in the police station. He denied that he had not removed the injured to the hospital or that IO had not recorded his statement.
PW-7 HC Narynan Singh (the DD writer), who confirmed that on 07.09.2010 at about 11.14 p.m one call was received from mobile no.989962902 that near Saini Sweet Shop, 2nd Pusta, New Usmanpur, acid has been thrown on a lady and a child. He recorded this information in his own handwriting in the DD register vide DD No.44-A bearing his signature at point A, copy of which is Ex.PW7/A and the same was marked to SI Ratuno Orao for necessary action.
During cross examination he denied that he had not received any call or that the DD recorded by him is ante dated or ante time.
PW-8 Ct. Manoj Kumar in his testimony has deposed that on 07.09.2010 on receipt of DD No.44-A State Vs. Nazeer Page No. 6 of pages 36 Ex.PW7/A, he alongwith SI Ratno Oranun had gone to the spot near Saini Sweet Shop, Gali No.4, F-999, 2nd Pusta, Usmanpur at abut 11.30 a.m, where it was revealed that injured persons had been removed to G.T.B Hospital by PCR Van. They went to G.T.B Hospital. IO collected the MLC of two injured namely Imrana and Arman. IO also recorded the statement of injured lady, prepared rukka and handed over it to him at 1.30 a.m for registration of FIR, to which he went to the Police Station and got the FIR registered through DO and returned to the spot and handed over the rukka and copy of FIR to the IO.
During cross examination he stated that they had received the information regarding Ex.PW7/A at about 11.15 p.m telephonically as they were returning back after attending some other call. They were on motorcycle.
The distance between the spot and place of occurrence would be about 1½ KM. When they reached the spot, there were 10 to 15 persons collected. IO did not record the statement of any person at the spot. They reached State Vs. Nazeer Page No. 7 of pages 36 GTB Hospital in 15 minutes. They remained in the hospital for about two hours. He left for registration of FIR alone and at that time IO was in the hospital. After registration of FIR, when he reached at the spot, IO was already present there. They remained for about 1½ hours at the spot in the search of witness and accused and there they had come to know the name of accused as Nasser but neither any witness nor accused met them.
PW-10 Ct. Sandeep Kumar confirmed that on 01.04.2011 in his presence and in the presence of complainant, the accused was interrogated by the IO SI Satpal. Accused was arrested vide memo Ex.PW10/B and his personal search was conducted vide memo Ex.PW10/B-1, both bear his signatures at points B. The disclosure statement Ex.PW10/A of the accused was also recorded by the IO, which also bears his signature at point A. IO recorded his statement.
PW-11 Ct. Mukesh testified that on 01.04.2011 he was present near a wine shop at 2nd Pushta on his State Vs. Nazeer Page No. 8 of pages 36 patrolling duty, where the complainant Smt. Imrana came alongwith accused Nazeer and told him that he had come to her house. He alongwith complainant took the accused to the PS. He handed over the custody of accused to SI Satya Pal. His statement was recorded by the IO.
7. Medical/Expert witnesses:-
PW-2 Dr. Shalu Punj, Sr. Resident (Burn and Plastic Surgery Department), GTB Hospital in her testimony stated that on 21.05.2011 she had given opinion regarding nature of injuries as grievous on the MLC no.A-4166/10 of Imrana and on MLC no.4177/10 of injured Arman on the basis of records and proved on record the said MLCs as Ex.PW2/A and Ex.PW2/B. Her opinion on both the MLCs is in encircled portion at point A bearing her signatures at point X. PW-5 Dr. Amit Kumar Gupta, Ex. CMO, GTB Hospital in his testimony stated that on 07.09.2010 at about 12.00 a.m one patient Imrana was brought by ASI Satvir Incharge PCR Van B-47 with alleged history of State Vs. Nazeer Page No. 9 of pages 36 assault (acid burn) for medical examination and treatment. Dr. Pankaj Rakesh Jr. Resident doctor working under him had examined the patient and on local examination 54% burn over the body of patient were found. The patient was given initial treatment and then referred to Surgery Emergency (Room No.149) for further management. He identified the MLC Ex.PW2/A to be in the handwriting and signatures of Dr. Pankaj Rakesh, which bears the signatures of Dr. Pankaj at point B. He also stated that on the same day at about 12.15 a.m Dr. Dheeraj Sakia, who was also working under him as Jr. Resident at GTB Hospital had examined one patient namely Arman, who was brought by same police official for medical examination and treatment with alleged history of assault (acid burn). On local examination corrosive burns (about 25% to 30%) on the face, chest, left shoulder, back and neck were found on the body of the injured. He identified the MLC already Ex.PW2/B to be in the handwriting and signatures of Dr. Dheeraj Sakia, State Vs. Nazeer Page No. 10 of pages 36 bearing her signatures at point B. During cross examination he confirmed that the patient was never produced before him. He denied that he is not familiar with the handwriting and signatures of the doctors mentioned above.
8. Material witnesses:-
PW-1, PW-6, PW-9, PW-12 and PW-13 are the star witnesses of the prosecution being the injured person/ complainant and IOs of the case.
PW-1 Imrana (complainant) has testified in her evidence that the accused (correctly identified) wanted to marry her. She refused him saying that her husband was missing and he could come back. For the last one year, before the date of incident, the accused used to be in possession of acid and he used to threaten her that he will throw acid on her, if she does not marry him. She could not tell the date of incident but she stated that she was coming back from her work and his child Arman was also present with her. Accused came from behind and State Vs. Nazeer Page No. 11 of pages 36 threw acid on her. At that time, Arman was in her arms and they sustained acid burn injuries. They raised hue and cry. Accused ran away and remained absconded for 4/5 months. The accused came to her room and she told him as to how he had dared to come his room and she got the accused apprehended. She gave her statement Ex.PW1/A, bearing her thumb impression at point A, to the police. The accused was also arrested in her presence and she had also put her thumb impression on documents Ex.PW1/B and Ex.PW1/B1.
The witness was cross examined by Ld. Addl. PP for the State after seeking permission of the Court as she was resiling from her previous statement recorded by the police, wherein she confirmed that the incident had taken place on 07.09.2010 at about 11.00 p.m and at that time she was returning to her house after buying household goods. The accused was not staying with her for the last one year prior to the date of incident and for the last 2/3 days, they were having quarrel on the issue of drinking State Vs. Nazeer Page No. 12 of pages 36 liquor. The accused did not tell her that if she prevented him from drinking liquor, then he would disfigure her face. The incident had not taken place near the shop of Saini Halwai at F-999, IInd Pusta, Usman Pur, Delhi. She had shown the place of occurrence to the police.
During cross examination by Ld. Counsel for accused she stated that the public persons were coming and going on the road at the time of incident. Out of fear, none of those persons apprehended the accused. The accused was carrying acid in a bowl (donga). He was also carrying a bottle. On the day of incident also accused was carrying bottle for the whole day. She had reported the matter to the police three times and the accused was put behind the bars on all the three times. She could not tell the date on which she had made complaints to the police. She also could not tell the name of the person in whose presence the accused threw acid on her. Police came at the spot after half an hour as a call was made by a shopkeeper but she could not tell the name of said State Vs. Nazeer Page No. 13 of pages 36 shopkeeper. She stated that she is illiterate and her statement Ex.PW1/A was read over to her by the police and it was recorded at the spot. She had put her thumb impression on three papers. She was taken to the hospital by her sister Saira, who used to reside in her neighbourhood. Police had also come in the hospital. She remained hospitalized for 15 days and her son Arman remained hospitalized for one month. She had taken the police to the spot prior to and after the date of incident. She denied that she had a quarrel with the accused or that she had thrown acid on the accused or that hand of accused also burnt with the acid.
PW-6 Sh. Amrit Pal in his testimony could not tell the date or month of occurrence but he stated that it was last year at about 11.00 p.m. He was present at his shop. He also stated that he went near the shop of Sani Sweets and he was told that one person namely Naseer had thrown acid on the face of one lady and a child and they were in extreme pain. He called number 100 from his State Vs. Nazeer Page No. 14 of pages 36 mobile phone no.9899629202. PCR van came there and removed the lady and child to the hospital. His statement was recorded by the police.
During cross examination by Ld. Counsel for accused he conceded that he is not a eye witness of the occurrence and he had not seen as to who had thrown the acid. She stated that daughter of injured lady had come to his shop to take milk in order to apply the same on the injury. The distance between his shop and the place of occurrence would be about 500 meters. When he reached at the spot, he saw gathering of many persons. His statement was recorded by the police on the same night.
PW-9 SI Ratno Oragon in his testimony has corroborated the story of prosecution while stating that on 07.09.2010 on receipt of DD No. 44-A Ex.PW7/A, he alongwith Ct. Manoj had gone to the spot near Saini Sweet Shop, Gali No.4, F-999, 2nd Pushta, Usmanpur at about 11.30 p.m, where it was revealed that the injured State Vs. Nazeer Page No. 15 of pages 36 persons had been removed to GTB Hospital by PCR van. They went to GTB Hospital. He collected the MLC of two injured namely Imrana and Arman. Then he recorded the statement of injured lady Imrana Ex.PW1/A, who was declared fit for statement by the doctor in the MLC itself. Thereafter, he prepared rukka Ex.PW9/A and handed it over to Ct. Manoj at about 1.30 a.m for registration of FIR. Ct. Manoj left for registration of FIR and he went to the spot. Ct. Manoj handed over him the rukka and copy of FIR at the spot. He further stated that he made search for eye witness and accused, whose name was revealed as Naseer but of no avail. On 01.10.2010, he prepared the Site Plan Ex.PW9/B with the assistance of lady Imrana. In the meantime he was transferred from the Police Station and he handed over the case file to the MHC (R).
During cross examination by Ld. Counsel for accused he stated that they received the information regarding Ex.PW7/A at about 11.17 p.m and at that time they were returning back after attending some other call and were State Vs. Nazeer Page No. 16 of pages 36 near the police station. They were on motorcycle. The distance between the spot and place of occurrence would be about 2 k.m to 2½ k.m. When they reached the spot, there were 10 to 20 persons collected. He did not record the statement of any person at the spot. They reached GTB Hospital at 11. 50 p.m and they remained there for about two hours. He again reached at the spot at about 1.50 a.m. Ct. Manoj came at the spot at about 2.30 p.m. He conceded that he did not obtain the signatures or thumb impression of injured Imrana on the Site Plan. He denied that he is deposing falsely or that all the statements were recorded in the police station subsequently or that he did not record the statement of injured Imrana or that he did not conduct the investigation correctly.
PW-12 SI Satyapal Singh in his testimony has deposed that on 01.04.2011 the present case was marked to him by the order of SHO. Complainant Imrana came to the PS alongwith Ct. Mukesh and produced the State Vs. Nazeer Page No. 17 of pages 36 accused Nazeer (correctly identified). He interrogated the accused in the presence of Ct. Sandeep and complainant. Accused was arrested and his personal search was conducted vide memos Ex.PW1/B and B-1 respectively. He recorded the disclosure statement of accused Ex.PW10/A and the statement of PWs. The accused was medically examined at GTB Hospital and on the next day, he was produced before Ld. MM and was remanded to JC. Thereafter, he handed over the case file to the MHC (R).
During cross examination he stated that accused was arrested in this case at about 10.45 p.m and inadvertently he had not mentioned the time of arrest in the arrest memo in the specified column.
PW-13 SI Girish has testified in his evidence that on 20.12.2010, he received the case filed from MHC (R) by the order of SHO for investigation. He tried to contact the complainant and to trace the accused but of no avail. The complainant as well as the accused had already left the tenanted place given in the complaint. Case file was State Vs. Nazeer Page No. 18 of pages 36 deposited to the MHC (R) being untraced. Again on 03.05.2011, he received the case file by the order of SHO. It was revealed that the accused had been arrested in this case. He contacted the complainant. On 21.05.2011, as per direction of doctor, took them to GTB hospital for seeking nature of injury. Doctor opined the nature of injury on the MLC of Imrana Ex.PW2/A grievous and also on the MLC of Arman Ex.PW2/B. He recorded the statement of PWs i.e. ASI Satbir and Amar Pal on 23.05.2011. He also stated that on the basis of material collected during investigation charge sheet was prepared and got filed through SHO/ACP.
During cross examination he stated that when he received the case file MLC were there. He came to know that the PCR officials had taken the injured to the hospital. DD entry of PCR call was also on record. He did not found it necessary to record their statement at that stage but after discussion with senior officers, he recorded it. He denied that he had not conducted the State Vs. Nazeer Page No. 19 of pages 36 investigation properly and falsely implicated the accused or deposed falsely.
9. After conclusion of prosecution evidence, the accused was examined U/s 313 Cr.P.C. wherein he forcefully denied the story of the prosecution while claiming innocence on the plea of false implication by the police.
10. I have heard the rival submissions made before me. I have also carefully perused the entire material placed before me.
As per submissions of Ld.Addl.P.P for the State by way of trustworthy and reliable evidence of the complainant coupled with the medical/scientific evidence brought on record, the prosecution has been able to establish its case by proving the guilt of the accused beyond reasonable doubt. Although there are a few contradictions and short comings in the testimony of complainant but the same are insignificant as the fact that the complainant and her minor son sustained burn injury by pouring of acid upon them has not been State Vs. Nazeer Page No. 20 of pages 36 disputed. Further the injuries sustained by both the victims has also been established by medical evidence brought on record. Further it is only the defence of the accused that at the time of incident of pouring of acid upon the victims, he was not present at the spot and the person who had thrown the acid was some one else has been collapsed by the very fact that admittedly accused himself sustained burn injuries on his hand and the stand taken by the accused that somebody else had thrown acid upon the victim as well as the accused falsify by the fact that he sustained injuries over his hand and in case the acid would have been thrown upon him by some one else, it would have fallen upon the other parts of his body. It is possible only in the circumstances when the person who carries the such substance throws it upon the other and in the process it falls on his hand too. Further if the acid was thrown by somebody else then why the accused instead of staying and helping the victim at the spot in carrying them to the hospital fled away and did State Vs. Nazeer Page No. 21 of pages 36 not lodge any complaint of the incident. The accused was having the living relationship with the complainant and he was in the habit of taking liquor and on the objection of complainant, the accused was annoyed and he used to threaten the complainant to disfigure her face by throwing acid on her.
On the other hand according to Ld. Counsel for accused, the accused has been falsely implicated in this case. No incident took place as alleged by the complainant. There is no eye witness to the incident. The evidence of PW-6 examined by the prosecution is a hear say evidence and is not worthy to be relied upon. Moreover there as material contradictions in the testimony of the complainant also and in these situation the accused is entitled for an order of acquittal in his favour.
The perusal of the file shows that the prosecution has examined thirteen witnesses, out of them PW-1 Imrana complainant has supported the case of the prosecution State Vs. Nazeer Page No. 22 of pages 36 on the material points. It is not a disputed fact that the victims had sustained injuries by pouring the acid upon them. The burn injuries sustained by the injured have been proved by the medical evidence brought on record. In her testimony the complainant/victim has categorically confirmed that she and her son to whom she was carrying with her sustained burn injuries by pouring of acid by the accused, present in court, upon them. She has further confirmed that for the last one year, prior to the date of incident, accused used to be in possession of acid and he threatened her that he will throw acid on her, if she does not marry him. On the day of incident accused came from behind and threw acid on her, at that time her son Arman was in her arms. They sustained acid burn injuries. The perusal of her statement reveals that she is consistent and corroborative.
It has been held time and again by Hon'ble Supreme Court that it is the quality of evidence which matters it and not the number of the witnesses. The contention of State Vs. Nazeer Page No. 23 of pages 36 Ld. Defence counsel that no independent witness was joined in the investigation to corroborate the testimony of PW-1 Imrana and statement of PW-6 is of hear say nature and therefore uncorroborated testimony of PW-1 cannot be relied upon, is liable to be ignored in view of the the judgment of Hon'ble Supreme Court of India reported as Lallu Manjhi and another Vs. State of Jharkhand, ''2003 1 AD (SC)-597 '' wherein it was observed that conviction of accused can be based even on the testimony of a solitary witness when his evidence is found to be wholly reliable.
The next contention of the Ld. Counsel for the accused that the incident occurred at a public place where lot of public persons were present, but the IO did not join any public witness in the proceedings.
It is well known fact that public persons are not prepared to join the investigation or other proceedings conducted by the police. It is also well settled law that it is not necessary to examine all the persons who were State Vs. Nazeer Page No. 24 of pages 36 witnessing the incident. In this regard I am supported/fortified by the judgment of Hon'ble Supreme Court of India, reported as M.A. Abdulla Kunhi Vs. State of Kerala 1991 SC-452 wherein it was held that it is not necessary that all the persons who were witnessing the occurrence should be examined. Moreover, it is well settled position of law that it is not the number of witnesses which matters, rather it is quality of evidence which matters.
Even otherwise this was negligence on the part of the IO that he did not join the public witnesses. This cannot be made basis to discard the testimony of otherwise reliable witnesses.
The Hon'ble Supreme Court, in a case, reported as State of Rajasthan Vs. Kishore 1996 Cr.L.J.2003 (SC) observed that the mere fact that the investigating officer committed irregularity or illegality during the course of investigation, would not and does not cast doubt on the prosecution case nor trustworthy and State Vs. Nazeer Page No. 25 of pages 36 reliable evidence can be cast aside to record acquittal on that account.
So, this contention of the Ld.Counsels does not have any merit and is to be ignored. Therefore, under these circumstances, I am of the view that the contention of the Ld. Defence Counsel is without any merits and the same does not affects the merits of the prosecution case.
Further Ld. Defence Counsel has taken the plea of alibi i.e. accused Nazeer was not present at the spot at the time of alleged incident. Even acid was thrown on him by some one else and that is why his hand got burn injuries.
The Hon'ble Supreme Court of India in a case titled as ''Binay Kumar Singh Vs. State of Bihar '' ( 1997)1 SCC-283 has observed that the burden of proving an alibi is entirely on the accused and strict proof is required for establishing an alibi. The word alibi means 'elsewhere', and that word is used for convenience when an accused takes recourse to a defence that when the State Vs. Nazeer Page No. 26 of pages 36 occurrence took place he was so far away from the place of occurrence that is extremely improbable that he would have participated in the crime.
The Hon'ble Supreme Court of India in a case reported as ''State of Haryana Vs. Sher Singh 1981 Cr.L.J.-230(SC)'' has observed that if an accused takes the plea of alibi, he must establish it.
The Hon'ble Supreme Court of India in a case reported as ''Duth Nath Pandey Vs. State of Uttar Pradesh AIR 1981 SC-911'' has observed that plea of alibi can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
In the case in hand, accused Nazeer did not lead any evidence in support of his plea of alibi and this plea further fails in the circumstances when admittedly accused himself sustained burn injuries on his hand and the stand taken by the accused that somebody else had thrown acid upon the victim as well as the accused falsify State Vs. Nazeer Page No. 27 of pages 36 by the fact that he sustained injuries only on his hand which is not possible in the case where the acid is thrown upon him by some one else. In this situation might have fallen upon the other parts of his body too. It is possible only in the circumstances when the person who carries the such substance throws it upon the other and in the process it falls on his hand too. Further if the acid was thrown by somebody else then why the accused, instead of staying at the spot and helping the victims in carrying/removing them to the hospital, fled away and did not lodge any complaint of the incident.
In the light of aforesaid, the accused Nazeer has failed to prove that he was not present at the spot and hence, in my view the plea of alibi is not proved.
Perusal of the testimonies of the prosecution witnesses show that they are consistent, reliable and trustworthy. They were cross-examined at length by the Ld. Defence Counsel but they could not be shaken from their stand. Even in the cross examination of complainant State Vs. Nazeer Page No. 28 of pages 36 Imrana by Ld. Counsel for accused a suggestion was put to the complainant i.e. it is wrong to suggest that the accuses also burnt with the acid" and by putting the said suggestion the accused has himself admitted his presence at the place of occurrence at the relevant time.
Further by way of the testimonies of medical witnesses i.e. PW-2 & PW-5 the injuries are proved. In this case injured Imrana was medically examined on 07.09.2010 by Dr. Pankaj (the then Jr.Resident of GB Hospital) and the factum of examination of complainant Imrana [(with the alleged history of assault (acid burn)] by Dr. Pankaj has been established by the testimony of PW-5 Dr. Amit Kumar Gupta (Ex. CMO GTB Hospital), who identified the MLC of Imrana Ex.PW2/A to be in the handwriting and signatures of Dr. Pankaj at point B. PW-5 Dr. Amit Kumar has also testified that one patient namely Arman was also examined [(with the alleged history of assault (acid burn)] on 07.09.2010 by Dr. Dheeraj Sakia and he also who identified the MLC of Arman Ex.PW2/ to State Vs. Nazeer Page No. 29 of pages 36 be in the handwriting and signatures of Dr. Dheeraj Sakia at point B. MLCs of injured Ex.PW2/A and Ex.PW2/B have been duly proved by PW-2 Dr. Shalu Punj, wherein she opined the nature of injures as "grievous". Other witnesses i.e. PW-6 Sh. Amrit Pal, who called number 100 from his mobile phone no.9899629202 has confirmed that he went to the spot near the shop of Sani Sweets, where he was told that one person namely Naseer had thrown acid on the face of one lady and a child and they were in extreme pain. PW-9 SI Ratno Oragon is the first IO of the case, who has corroborated the story of prosecution. He proved the Site Plan. PW-12 SI Satyapal Singh has also proved the factum of arrest of the accused. He further confirmed that he recorded the disclosure statement of accused Ex.PW10/A. PW-13 SI Girish, who completed the remaining investigation and filed the challan has also corroborated with the story of prosecution.
These witnesses were cross- examined at length by State Vs. Nazeer Page No. 30 of pages 36 the defence counsel but there credibility could not be impeached. The evidence of these witnesses are reliable, believable and inspires confidence.
Thus, the prosecution has been able to prove its case by making an unbreakable chain of evidence against the accused to hold him guilty for commission of offence punishable U/s 308 IPC beyond the shadow of all reasonable doubt. I therefore, hold the accused Nazeer guilty for the offence punishable under section 308 IPC and convict him thereunder.
11. Accused be heard separately on the point of sentence.
Announced in open Court on 03rd February' 2012 (RAKESH KUMAR) Addl. Sessions Judge (NE) Karkardooma Courts, Delhi State Vs. Nazeer Page No. 31 of pages 36 IN THE COURT OF SH. RAKESH KUMAR ADDL. SESSIONS JUDGE-02 : (NORTH EAST) :
KARKARDOOMA COURTS : DELHI SC No.30/11 FIR No.285/10 PS : New Usman Pur U/s 308 IPC State Versus Nazeer, S/o Allah Mehar, R/o Kishore Ka Makan, Main Service Road, Usmanpur, Delhi ORDER OF SENTENCE 10.02.2012 Present: Sh. Atul Kumar Srivastava, Ld. Addl. PP for State.
Convict is present from JC with his counsel Sh. K. N. Sharma from Legal Aid.
1. I have given my thoughtful consideration to the rival submissions of Ld. Counsel for the convict as well as of Ld. Addl. PP for the State on the point of quantum of sentence to be awarded to the convict.
2. Vide my judgment dated 03.02.2012, I have already convicted the accused Nazeer for the offence punishable Under Section 308 IPC.
3. It is submitted on behalf of the convict that he is the first offender and has no criminal background. It is also claimed that he belongs to the poor strata of the society and now a compromise has been arrived at State Vs. Nazeer Page No. 32 of pages 36 between the complainant and the convict and the complainant is ready to live with the accused after his release from the Jail and the convict is also ready to look after the complainant and her son. In these circumstances, particularly, keeping in view the future of the complainant and her minor son, a lenient view may be taken. Complainant is a single lady and with the assistance of the convict she would be able to nurture the future of her son. The convict is behind the bar since 01.04.2011 and has learnt a great lesson. It is also claimed on behalf of the convict that the conduct and behaviour of the convict remained upto the mark through out the period of trial and no complaint has been reported against him from any corner. For the aforesaid reasons, the Ld. counsel for the convict is praying for some leniency towards the convict.
On the other hand according to Ld. Addl. PP for the State, the convict has committed serious offence which is against the society at large and he deserves the stern punishment. Punishment should not be a nail bitting one. He also submitted that the offence committed by the convict is a most serious crime, which has caused a great misery to the victims. Further there is no guarantee that the convict will not repeat his act in future. In the case in hand, the circumstances demand that the convict should State Vs. Nazeer Page No. 33 of pages 36 be given severe punishment to have a deterrent effect on the society.
4. Sentencing is a very difficult process. At one end there is a question of personal liberty and at the same time on the other hand the question of larger interest of society is involved.
It has been very aptly indicated in Dennis Councle MCGDautha Vs. State of Callifornia (402 US 183: 28 L.D. 2d 711) that, "no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished."
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs. State of Madhya Pradesh it has been held that, "In operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix - Facts and given circumstances in each case, the nature of the crime, in manner in which it was State Vs. Nazeer Page No. 34 of pages 36 planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence - Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. ....... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner."
In Sevaka Perumal etc Vs. State of Tamil Nadu (1991 (3) SCC 471) it was held that, "It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society.
Friedman in his "Law in Changing Society"
stated that, "State of criminal law continues to be
- as it should be - decisive reflection of social consciousness of society". Therefore, in operating State Vs. Nazeer Page No. 35 of pages 36 the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
5. After giving my thoughtful consideration to the aforesaid submission made on behalf of both the sides, I have come to the considered opinion that the interest of justice shall be fully met if the convict if awarded sentence to undergo rigorous imprisonment for the period of two years with a direction to pay the fine of Rs.2,000/-, in default, simple imprisonment for the period of three months U/s 308 IPC. Sentence is awarded accordingly. Benefit of Section 428 Cr. P. C be given to the convict. Copy of the judgment and order be given to the convict free of cost.
6. File be consigned to Record Room after completion of necessary formalities.
Announced in open Court on 10th February' 2012 (RAKESH KUMAR) Addl. Sessions Judge (NE) Karkardooma Courts, Delhi State Vs. Nazeer Page No. 36 of pages 36