Delhi District Court
State vs . Dharmender Yadav, on 5 February, 2016
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
ADDITIONAL SESSIONS JUDGEIII: NORTH DISTRICT
ROHINI COURTS: DELHI
SC No. 105/13
FIR No. 351/12
P.S. Mahendra Park.
U/s. 307 IPC.
ID No. 02404R0075382013
State Vs. Dharmender Yadav,
S/o Sh. Ram Dass Yadav,
R/o Village Nangla Kewal,
PS EKA Distt Firozabad UP.
Date of institution : 08.04.2013
Date of reserving the judgment : 20.01.2016.
Date of judgment : 05.02.2016
JUDGMENT
1. The accused persons are facing charges before this court that on 19.12.2012, at about 7.30 am, at J187, 1st Floor, Jahangir Puri, Delhi within the jurisdiction of PS Mahendra Park, he gave beatings to Smt. Sunita Devi and while giving beatings, he threw acid upon her and caused grievous injuries to her with such intention or knowledge and under such circumstances that if he, by his said act had caused the death of Smt. Sunita Devi, he would have been guilty of committing her murder.
State Vs Dharmender Yadav FIR No. 351/12 Page No. 1/20
2. Story behind framing of charges is that the prosecutrix lodged a report before the police that on the day of incident on 19.12.12, while she was at her home, her husband/accused started spitting venoms on her. He also used to quarrel with the prosecutrix day in and day out and used to keep suspicion on her that she was doing some wrong acts. The accused used to threaten the prosecutrix that he would kill her. On the day of incident, the accused started beating her, abusing her and also started putting allegations on her. When the prosecutrix resisted, the accused threatened her that he would see her on that day itself. He left the spot and brought one bottle from the toilet which was containing acid and managed to throw the same upon the prosecutrix. The acid fell on the arms, throat and face of the prosecutrix. At that point of time, the son of the prosecutrix was also present there and acid also fell upon the son of the prosecutrix. The accused left the spot after taking the son of the prosectrix. When the prosecutrix raised alarm, people swelled over there and someone made a call to PCR. It was alleged that for the purpose of killing the prosecutrix, the accused had thrown the State Vs Dharmender Yadav FIR No. 351/12 Page No. 2/20 acid on her. FIR was lodged consequent to the statements of the prosecutrix.
3. After completion of investigation chargesheet u/s 307 IPC was filed.
4. Prima facie case u/s 307 IPC was made out against the accused.
The accused did not plead guilty to the formal charge and claimed trial.
5. In order substantiate its claim against the present accused, the prosecution examined 14 witnesses.
6. The PW1 was HC Urmila who got the FIR Ex. PW1/B registered.
7. PW2 was prosecutrix herself.
8. PW3 HC Mehtab had taken the sealed parcels to FSL.
9. PW4 HC Satyawan Dabas was party to the investigation at the time when information was received.
10. PW5 Sh. Satish Kumar was the Executive Magistrate who had recorded the statements of the prosecutrix.
11. PW6 HC Chander Bhan was the MHC(M).
12. PW7 Sardar Singh Meena was PCR official who had attended the spot after getting information.
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13. PW8 HC Rajiv kumar had got the statement recorded at PCR office and produced the form.
14. PW9 Inspector Darshan Singh was also party to the investigation.
15. PW10 Smt. Kavita Goyal was Sr. Scientific Officer.
16. PW11 SI Rajender Singh was the initial IO of this case.
17. PW12 Dr. Shweta Aggarwal deposed on behalf of Dr. Sudhir.
18. PW13 Retired SI Naresh was the member of the Crime Team who inspected the site after the incident.
19. PW14 Ct. Parvinder had taken the photographs of the incident.
20. After completion of prosecution evidence, statements of accused u/s 313 Cr. P.C was recorded and the accused did not desire to lead any defence evidence.
21. Ld. counsel for the accused who was assisted by the Ld. Amicus Curiae stated that the accused is innocent and has been falsely implicated in this case. Ld. counsel stated that as per prosecution story the acid was also allegedly thrown on the son of the prosecutrix, but the said son of the prosecutrix has not been medically examined by the police. It was elaborated that the State Vs Dharmender Yadav FIR No. 351/12 Page No. 4/20 prosecutrix was reluctant in getting her treatment done and only due to delay caused due to said reluctance her injuries aggravated, delay on the part of the prosecutrix in getting her treatment done was due to the psychological reasons as she herself had poured acid upon her and rather blamed the accused. Ld. counsel further stated that the rukka suggests that the same was sent at 1.25 p.m, but the cross examination of PW5 Satish Kumar, Ld. Executive Magistrate suggests that he had recorded the statement in the evening as he had gone to the house of the prosecutrix in the evening. Ld. Amicus curiae also stated that the attack was not pre planned and there was no intention and hence provisions of section 307 IPC are not attracted. It was highlighted that the acid allegedly thrown was not concentrated and it was diluted one for household purposes, that the MLC suggests that there was no life threatening injuries and 56% deep burn with facial (acid burns) are there. Ld. counsel for the accused has drawn the attention of the court towards the testimony of PW12 Dr. Shweta Aggarwal wherein she stated that can't explain as to what were the basis for opining the State Vs Dharmender Yadav FIR No. 351/12 Page No. 5/20 nature of injury as grievous. Ld. counsel argued that no public witness could be joined despite availability, even the arrest is stated to be doubtful as the arrest memo has been signed by the PW2 Prosecutrix, but in her cross examination, she denied the arrest of the accused in her presence. Ld. counsel stated that there were no remnants of acid in the bottle when the same was recovered as also stated by the prosecutrix that it was empty bottle, whereas certain acid was stated to be lying in it which was sent to FSL. Ld. counsels for the accused prayed for acquittal of the accused.
22. Per contra, Ld. APP stated that at the time when a person is being attacked with the acid, he/she can not be expected to see that the bottle containing the same was left empty at the time or party filled. It was stated that the accused had attacked the prosecutrix on her face and it could have been fatal injuries, but fortunately the prosecutrix survived the attack, and had the same fell on the forehead or nose which are most sensitive parts of the body, the attack might have been fatal. Ld. APP highlighted that all the discrepancies pointed out by the Ld. counsel for accused as well as State Vs Dharmender Yadav FIR No. 351/12 Page No. 6/20 by Ld. Amicus Curiae are trivial in nature and are bound to happen in ordinary course. It was stated that non joining of public witnesses has been well explained by the IO. Ld. APP highlighted that the son of the prosecutrix could not be medically examined as the prosecutrix at the time of her medical examination had put a condition that she would get her medical examination done only after her son is handed over to her. Ld. APP stated that the testimony of all the prosecution witnesses is clear, cogent, coherent and trustworthy and prayed for the conviction of the accused and that the offence committed by the accused comes within the ambit of section 326A IPC, hence he be convicted u/s 326A IPC and not u/s 307 IPC.
23. I have heard the arguments of Ld. defence counsel, Ld. APP and have carefully gone through the entire material available on record.
24. First of all this court shall deal with the testimony of the prosecutrix which was recorded in the court. The prosecutrix appeared as PW2 wherein she categorically stated before this court that quarrel took place on 19.12.2012 between her husband/accused and herself as State Vs Dharmender Yadav FIR No. 351/12 Page No. 7/20 her husband used to have suspicion over her character, accused Dharmender threatened to kill her and thereafter poured acid upon her after taking the same from the toilet and after mixing something in it. Some acid also fell on her son, acid fell on on her face, neck, breast and on the left shoulder. Her husband ran after picking up her son Amit. When she cried due to pains, all the neigbourers collected there and somebody called the PCR. Executive Magistrate recroded her statement Ex. PW2/A then and there. While the prosecutrix was removed to the hospital, she also mentioned before doctor in the history contained in the MLC that her her husband scolded her and spilled acid on her face and that she sustained chemical burns.
25. The prosecutrix reiterated the contents of her statements made before the Executive Magistrate in her testimony on oath before this court and also she had reproduced before the concerned doctor immediately after the incident.
26. Now I shall deal with the medical evidence as highlighted by the Ld. counsel for the accused. As Ld. counsel for the accused has State Vs Dharmender Yadav FIR No. 351/12 Page No. 8/20 agitated that doctor who had prepared the MLC has not mentioned the reasons for arriving at the conclusion that the nature of the injuries was grievous. This, as per the Ld. counsel is because the PW12 Dr. Shweta Aggarwal who had come to depose on behalf of Dr. Sudhir (who has since left the hospital) had categorically mentioned that since she had not examined the patient, she cannot explain as to what were the basis of opining the nature of injury as grievous.
27. It is correct that no deep details have been mentioned in the MLC Ex. PW12/A and after examination of the prosecutrix 56% deep burn c facial (acid burn) has been mentioned and it has been mentioned that the nature of injuries was grievous. After going through the MLC, I am of the opinion that even if there are no details as to how the doctor arrived at the conclusion to opine the injuries as grievous, we can certainly take guidance from section 320 IPC wherein it is mentioned that if there is emasculation and permanent privation of the sight of either eye, permanent privation of the hearing of either ear, privation of any member of joint, State Vs Dharmender Yadav FIR No. 351/12 Page No. 9/20 destruction or permanent impairing of the powers of any member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth and any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuit, the same may be designated as "grievous" injury. The type of acid burns which the prosecutrix received can well be considered within clause 6th of section 320 IPC wherein it is mentioned that if there is permanent disfiguration of the head or face, such injuries can be treated to be grievous. There were deep burn injuries on the face which can be treated to be disfiguration. Accordingly, I do not find force in the arguments advanced by the Ld. counsel for the accused that the nature of injuries was simple.
28. The second point which was vehemently raised by the Ld. cousnel w.r.t arrest of the accused. It has been agitated that the accused was not arrested in the presence of the prosecutrix as highlighted by her in her cross examination conducted on 28.03.2014 wherein in the first line of the cross examination, she stated that the accused State Vs Dharmender Yadav FIR No. 351/12 Page No. 10/20 was not arrested in her presence. In this context , I perused the testimony of different witnesses and also the testimony of the PW2/prosecutrix wherein she had categorically mentioned in her examination in chief conducted on 29.10.2013 that accused was arrested by the police in her presence and on her identification vide arrest memo Ex. PW2/C. She also identified her signatures on the said memo. The cross examination was conducted on 28.03.2014. In the cross examination after denial of the arrest of the accused by prosecutrix in her presence, she immediately voluntarily stated that accused was brought in the hospital by the police. Judicial notice can be taken of the fact that a layman generally remains unaware of the technical terms like "arrest" etc and hence once she identified her signatures on the arrest memo and categorically stated in her examination in chief that the accused was arrested in her presence, the same is enough to lead to conclusion that accused was arrested in her presence. There are various other signatories to the arrest in the arrest memo like PW4 HC Satyawan Dabas who not only identified his signatures on the arrest memo Ex PW2/C, but also State Vs Dharmender Yadav FIR No. 351/12 Page No. 11/20 stated that the accused was arrested in his presence. Upon a question being put by the Ld. counsel for the accused, the PW4 HC Satyawan specifically stated in his cross examination that IO along with him and prosecutrix were present when the accused was arrested. The accused was arrested vide arrest memo Ex. PW4/C in the presence of two witnesses hence there remains no doubt upon his arrest. The plea of Ld. counsel for the accused is not sustainable that the arrest is fabricated one.
29. Regarding the non joining of public witnesses it has categorically been mentioned by the PW11 SI Rajender Singh in his cross examination that no public person was present at the spot. He further deposed that he made inquiries from the neighbourers, but they had not witnesses the incident. Since there is well cogent evidence of PW11 SI Rajender Singh regarding his explanation w.r.t non joining of the public witnesses by the police during the investigation, the plea of the Ld. counsel that the case of prosecution is false cannot be given any credence.
30. The statement of prosecutrix was recorded before the Ld. Executive State Vs Dharmender Yadav FIR No. 351/12 Page No. 12/20 Magistrate. Mere discrepancies in the timings as mentioned in the rukka as highlighted by the Ld. counsel for the accused and as came up during the cross examination of the Executive Magistrate also cannot be given much importance as certain discrepancies are bound to happen during ordinary course of investigation.
31. After the arrest of the accused, the recovery of bottle containing hydrochloric acid was effected at the instance of the accused. It has been categorically stated by the PW11 SI Rajender Singh that accused made disclosure statement Ex. PW4/B in which he disclosed that he can produce the bottle of acid and accused accordingly led the police team to the rooftop of his house where he had thrown the bottle of acid after throwing the same upon the prosecutrix. Though the part vide which he had stated that he had thrown the acid is not admissible, but his last version in which he had offered for getting the bottle recovered from the roof of the house and subsequent recovery of the same is admissible in evidence within the meaning of section 27 of Indian Evidence Act. Pursuant to the disclosure statement Ex. PW4/B, the plastic bottle State Vs Dharmender Yadav FIR No. 351/12 Page No. 13/20 containing the label of "Kinley Club Soda" was recovered in which there were remnant of acid about 100 grams. The said bottle containing remnants of acid after its seizure was sent to FSL authorities by the police. Simultaneously, as per PW11 SI Rajender Singh, the burnt clothes of the prosecutrix which were handed over by the prosecutrix to the police were also seized and sealed and were sent to FSL.
32. It has been opined by the FSL authorities vide examination report Ex. PW10/A that there was partially burnt torn and stained cloth material in exhibit 1 and one transparent polythene containing one plastic bottle having yellow coloured transparent liquid volume approx 150 ml on exhibit 2. It was reported that on chemical examination, Exhibit 1 & 2 were found to contain mineral acid (Hydrochloric acid sulphuric acid). The prosecution has also produced PW10 Smt. Kavita Goyal, Sr. Scientific Officer who proved the report Ex. PW10/A. It was admitted by the PW10 Smt. Kavita Goyal that she had not mentioned the ratio of hydrochloric acid and sulphuric acid in her report and she did not examine the State Vs Dharmender Yadav FIR No. 351/12 Page No. 14/20 purity/density of the said acids.
33. It is the matter of common knowledge that even the diluted hydrochloric acid or sulphuric acid can be dangerous to the human body. Moreover, the burnt clothes of the prosecutrix sent to FSL as well as the acid bottle containing the remains of the acid were found to be containing the same hydrochloric acid and sulphuric acid accordingly the prosecution has duly proved that the acid found on the clothes of the prosecutrix used in the commission of offence was in fact the same which was recovered at the instance of the accused as the FSL report has corroborated the same.
34. The plea of the Ld. counsel that no finger prints on the bottle were lifted is also not tenable in view of the fact that the bottle was recovered at the instance of the accused and FSL authorities have already confirmed the version of the prosecutrix that the acid was used in the commission of offence.
35. Regarding no specification mark being put on the bottle by the police, it has come on evidence that the bottle was already containing label "Kinley Club Soda" and hence there was not much State Vs Dharmender Yadav FIR No. 351/12 Page No. 15/20 requirement of putting any other specification marks on the bottle.
36. As came up in the evidence of PW4 HC Satyawan Dabas as well as PW11 SI Rajender Singh that the crime team was also called at the spot who inspected the site. The crime team official PW13 Retired SI Naresh Pal stated that he inspected the site and gave his detailed report Ex. PW11/A. The said crime team report Ex. PW11/A also categorically goes to suggest that when mobile crime team reached at the spot, the prosecutrix was lying on bed in her house with blanket covered on her body. The bed sheet were also found burnt and there were white acid spots on the floor. The crime team report suggests that no container of acid was found at the spot. Accordingly, even the crime team report Ex. PW11/A corroborates the version of the prosecution.
37. The plea of the Ld. counsel that photographs Ex. PW4/1 to PW4/5 brought by the PW4 HC Satyawan Dabas on the his examination were not the same photographs as that Ex. PW14/1 to PW14/07 which were brought by PW14 Ct. Parvinder on the day of examination. Though it has been admitted by the PW14 Ct. State Vs Dharmender Yadav FIR No. 351/12 Page No. 16/20 Parvinder that the photographs were not same, but they pertain to the same incident. This trivial discrepancy can be ignored as it appears that at the time of filing of chargesheet it is only due to some clerical mistake this discrepancy has occurred and some photographs might not have been filed which should have been filed at the time of filing the chargesheet and that since the crime team has given its detailed report, this discrepancy can be overlooked.
38. Accordingly, the overall evidence collected and brought by the prosecution categorically goes to prove that it was the accused only who had thrown acid on the body of the prosecutrix on her face, neck etc. The testimony of prosecutrix is cogent, consistent and trustworthy. The motive behind the attack has also been well explained by the prosecution. The accused has also been duly identified by the prosecutrix and other witnesses. The prosecution has also produced medical evidence like MLC etc in support of their case. The crime team report has also corroborated the version of the IO. The FSL report also suggests that the burnt clothes of the prosecutrix as well as the recovery of bottle contents of which were State Vs Dharmender Yadav FIR No. 351/12 Page No. 17/20 thrown on the face of the prosecutrix contained the acid i.e. hydrochloric acid and sulphuric acid. Scientific study of these acids suggests that these can be dangerous to human body.
39. Judicial notice can be taken of the fact that throwing acid on females are on rise in Delhi. Law has also been considerably developed on the issue of throwing acid upon the females as victim is left to lurches and pains after she becomes victim of the acid attack. Such cases cannot be taken up lightly in view of the pains and trauma the victims undergo. In the present case also, though the accused has made his every attempt to kill the prosecutrix as he had thrown acid on the face of the prosecutrix, but fortunately the prosecutrix survived.
40. Regarding the plea of Ld. APP that the accused should be convicted u/s 326 A & 326 B IPC, I am of the opinion that since the incident had taken place on 19.12.2012 and the amendment Act 13 of 2013 vide which the section 326A and 326B were introduced in came into effect from 03.02.2013, hence same cannot be made to applicable retrospectively. Since these provisions were not in State Vs Dharmender Yadav FIR No. 351/12 Page No. 18/20 existence at the time of incident, the charges u/s 307 IPC could only be framed. Accordingly, the plea of Ld. APP is rejected.
41. Though the prosecution is required to prove the guilt of the accused beyond doubt as per the criminal jurisprudence, but keeping in view the nature of the offence and maintaining the ethics of the criminal jurisprudence, certain mine discrepancies as highlighted by the Ld. counsel for the accused can very well be ignored. Acid attacks on women is equal to taking away her identity from her and such rampant increase in this heinous crime was leading to terror amongst women and Supreme Court took a vital step and certainly led to the empowerment of women to an extent and was an important step towards the safety of women in the country. Further it is the minimum responsibility of State to take steps for safeguard of women in the country. Though the Parliament by the criminal law (Amendment) Act 2013 has amended section 100 of Indian Penal Code, which provide a right of private defence body even to the extent of causing death in case of acid attack, many men or women are not even aware of self defence right they they can even kill State Vs Dharmender Yadav FIR No. 351/12 Page No. 19/20 assailant if the later is attacking to kill, rape or throw acid or cause grievous hurt etc. The State shall have to make endeavour to make practical steps of safety of a women.
42. In view of the aforementioned discussion, the prosecution has fairly proved its case beyond reasonable doubt. Consequently, accused Dharmender Yadav is convicted for the offence u/s 307 IPC.
43. In term of direction of Hon'ble High Court of Delhi in DRI Vs. Mike Chimezie, CRL.L.P. 3/2015,necessary bail bond with surety u/s 437A Cr.P.C in compliance has been furnished by the accused along with latest passport size photograph and residence proof.
44. Regarding compensation, it has been reported by the IO that though the interim award of Rs.3 lacs has been awarded and disbursed to the victim in this case in terms of earlier order of this court, but during the trial itself, the lady/victim has died and the children of the prosecutrix are stated to be with the family of the accused. Report has already been filed by the IO in this regard.
45. Let the accused be heard on the point of sentence.
Announced in the Open Court (Sanjay Kumar Aggarwal)
On 05.02.2016 Addl. Sessions Judge(03)
North District, Rohini Courts
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