Delhi District Court
State vs . Om Prakash on 31 October, 2012
IN THE COURT OF SH. O.P. GUPTA DISTRICT JUDGE
& ASJ I/C (WEST), DELHI
***
SC No. 14/12
Unique ID No. 02401R0103152012
State Vs. Om Prakash
s/o Sh. Shyam Lal
r/o D3/3, Phase5, Om Vihar
Uttam Nagar, New Delhi.
FIR No. 98/12
PS: Uttam Nagar
U/s: 326/ 307 IPC
Date of Institution : 06.03.2012
Date of Arguments : 17.10.2012
Date of Order : 31.10.2012
JUDGMENT
The case arises out of statement of Karan Kumar. Sum and substance of the said statement is that he was engaged in driving radio taxi. On 28.02.2011 at about 9.30 AM he was cleaning the vehicle No.DL1RY2531 belonging to his company, behind his house. The accused who has a stationery shop started quarreling with him on the issue of cleaning the vehicle. The accused uttered that on that day he would make the complainant realize the taste of not acceding to his version. SC No.14/12 Page 1 of 14 The accused brought a mugga from inside his shop and threw the same on complainant as a result of which the complainant received burn injuries. The accused told that he would completely burn the complainant from said acid. The complainant raised noise. Within sometime, his relatives took him to hospital. The accused deliberately threw acid on him. The police received information vide DD No.37B. SI Sunil Kumar and Ct. Kiran reached Mahindru hospital and came to know that the relatives of the victim had taken him to other hospital. On receipt of DD No.23A the said SI and Ct. went to DDU hospital. Complainant was found under treatment against MLC No.3721/2011. The SI recorded statement of injured and sent rukka for registration of FIR for offence u/S 326 IPC.
2. FIR was registered. Site plan was prepared. The accused was arrested on the same day. He made a disclosure. MLC of the injured was collected. Statements of witnesses were recorded. After completion of investigation challan was filed.
3. Copies were supplied and case was committed to the Court of Sessions. A prima facie case for offence u/S 307 IPC was found. Charge was framed to which the accused pleaded SC No.14/12 Page 2 of 14 not guilty.
4. In order to bring home the guilt of the accused, prosecution examined 5 witnesses. PW1 HC Kishan Kumar, Duty Officer proved copy of DD No.23A as Ex.PW1/A, copy of FIR as Ex.PW1/B and endorsement regarding registration of FIR on the rukka as Ex.PW1/C. He recorded DD No.27A regarding registration of FIR.
5. PW2 Karan Kumar is the complainant. He is injured also. He proved his report to the police as Ex.PW2/A which bears his signatures at point A. He repeated the avernments made in the said report. He identified the accused present in the Court as the person who threatened him to teach lesson, who went inside the shop and brought a mug containing acid and threw the same on him.
In cross examination he stated that there is a gali in between his house and the shop of accused. He denied that he had no documentary proof of his being resident of the given address. The accused did not assign any reason of attacking him. His relative Rakesh Kumar, Sunita Anand (landlady), friend Ajay Kumar and neighbourers whose name he could not SC No.14/12 Page 3 of 14 tell came to the spot after the noise. He did not try to save himself by putting his hands in front of the parts of his body as he did not get sufficient time to do so. His eyes were closed due to burn feeling of acid. He could not tell in which direction the accused went after throwing the acid. He denied that none went with him to the hospital or that no police person was present there. He denied that he did not have cordial relations with the accused or that is why he has falsely named the accused in this case.
6. PW3 Ct. Kiran accompanied the IO. He took rukka and got the FIR registered. He proved the arrest memo of the accused as Ex.PW3/A and personal search memo as Ex.PW3/B. He also proved the disclosure of the accused as Ex.PW3/C. In cross examination he denied that complainant did not meet him in the hospital or that he did not know about the incident.
7. PW4 Roshan Lal, Record Clerk from DDU hospital proved the MLC of the victim as Ex.PW4/A and nature of opinion about injuries being grievous on the said MLC.
8. PW5 SI Sunil Kumar is IO. He proved copy of DD No. 37B regarding information of the incident as Ex.PW5/A, rukka SC No.14/12 Page 4 of 14 as Ex.PW5/B, site plan as Ex.PW5/C. In cross examination he stated that he received 2nd DD one hour after the first DD. He could not meet any of the relative of the injured in DDU hospital. He volunteered that many persons were there in DDU hospital. He did not record statement of any of the relatives of the injured. The mug could not be seized as the same was not found in the gali. He did not make any enquiry from the persons present at the time when statement of injured was recorded. He denied that he did not go to the spot or prepared site plan falsely. He denied that he did not go to Mahindru hospital or that is why no record in that respect is attached in judicial file. He denied that he did not investigate the case properly or that the accused has been falsely implicated.
9. After completion of PE, statement of accused u/S 313 CrPC was recorded in which he denied that complainant was running radio taxi of Meru Cab or that on 28.02.2011 at about 9.30 AM complainant was cleaning car No.DL1RY2531 at the back of his house No.WZ27, Om Vihar, Phase4, Uttam Nagar. He denied that he told the complainant that he would teach him a lesson or went inside his shop or brought a mug containing SC No.14/12 Page 5 of 14 acid or threw the same on the person of complainant. He denied that the injured received acid burns on his face, head, left shoulder and left chest. He did not know if the relatives of the injured and neighbourer came and took him to Mahindru hospital from where he was shifted to DDU hospital. Copy of DD No.37B was a matter of record. He did not know about DD No.23A or MLC of the injured. FIR and DD No.27A regarding registration of FIR was matter of record. He did not know about the site plan. His arrest memo and personal search memo were matter of record. The PWs are interested witnesses. He pleaded innocence. He did not want to lead D.E.
10. I have gone through the material on record and heard the arguments. Ld. Addl.PP submitted that injured as PW2 has fully supported the version of the prosecution. Nothing has come in his cross examination to shake his testimony and so there is no reason to disbelieve his statement. The accused has not put any motive to the said witness as to why he has deposed against the accused. Simply suggesting that he did not have cordial relations with the accused or that is why he has falsely named the accused in the present case, is not enough to discard SC No.14/12 Page 6 of 14 the sworn testimony of the complainant.
11. On the other hand the counsel for the accused submitted that the case is based on sole testimony of injured. It is not the case of prosecution that no independent person was available. Despite that no effort has been made to join any independent witness. It is not safe to rely upon the testimony of the complainant alone.
12. The counsel for accused urged that as per statement given by the injured to the police, accused threatened him to taste the consequences of not acceding his request. But in cross examination in Court the witness stated that accused did not assign any reason of throwing acid. I do not find that the discrepancy is sufficient to exclude the statement of the victim. Mere threat to make the complainant realize the taste for not agreeing to the version of the accused is not a reason as such.
13. The counsel for accused went on to urge that complainant could not tell the name of the neighbours who came to the spot after the noise. I am afraid if the argument can be accepted. When a person has suffered burn injuries and his eyes were closed due to burn feeling of acid, he cannot be expected to SC No.14/12 Page 7 of 14 notice which neighbour came at the spot.
14. Non examination of Rakesh Kumar/relative of the complainant and Sunita Anand/landlord of the complainant, Ajay Kumar/friend of the complainant is also immaterial as they came to the spot after the complainant raised noise. They were not present at the time of incident and are not eye witnesses.
15. At the most it may be a case of lapse on the part of IO. But that is not sufficient to demolish the case of the prosecution. In this regard reliance can be placed on Krishna Pal Vs State of U.P 1996 Cr.LJ 1134, Baleshwar Mandal Vs State of Bihar Air 1997 SC 3471 and Yadala Venkata Subbamma Vs Yadalla Chinna Subbaiah (dead) by LRs & Ors. 2001(8) JT 110.
16. The counsel for accused did not miss to argue that according to PW2, IO recorded his statement in PS and at his house. But IO as PW5 denied that he recorded the statement of injured in PS. According to IO he recorded the statement of the injured in DDU hospital. The discrepancy is short of shunting out the case of the prosecution. It is of no consequence as to where the statement of injured was recorded. SC No.14/12 Page 8 of 14
17. The accused has not come out with any probable defence even in his statement u/S 313 CrPC. Simply stating that he was innocent is not enough. He must have disclosed as to why the injured got him implicated in this case.
18. Even if it is assumed for a moment and for the sake of argument that PW2 did not have cordial relations with the accused as suggested by the accused in the cross examination of PW2, there are so many persons who do not have cordial relations. But I have yet to come across a case where one would involve the other in such a heinous case just for not having cordial relations.
19. There is no rule that uncorroborated testimony of injured cannot be accepted. Corroboration is required as a rule of prudence. The law on the point is well settled. For this reliance can be placed on Vahula Bhushan @ Vehuna Krishnan Vs State of Tamil Nadu AIR 1989 SC 236, Dattu Ram Rao Sakhare & Ors. Vs State of Maharashtra 1997(5) AD SC 64 and Jagannath Chauhan Vs S.C.Nanda & Anr. 2003(5) AD 514.
Conviction can be based on the testimony of a sole witness if the same is coherent and inspires confidence. For SC No.14/12 Page 9 of 14 this reliance can be placed on Anna Wankhede Vs CBI (through State) 2011(5) ADD 500 in which it was held that over insistence on unrelated witness is likely to have effect of criminal justice going awry.
Otherwise the injured is most material witness and conviction can be based on the sole testimony of injured. He cannot be termed as interested witness. In this regard reliance can be placed on Surender Singh Vs State of Haryana (2006) 9 SCC 247 wherein it was held as follows: "the testimony of an injured witness has its own relivancy and efficacy. The fact that the witness is injured at the time and in the same occurrence, lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes"
The above view was followed by our own Hon'ble High Court in Vijay Singh Vs State (2011) 2 AD Delhi 586. Similar view was taken in Akhtar & Ors. Vs. State of Uttaranchal 2009 V AD (SC) 92.
SC No.14/12 Page 10 of 14
20. As a result of the above discussion I find that prosecution has proved this case beyond reasonable doubt. The accused is convicted u/S 307 IPC.
Announced in open Court on (O.P. GUPTA)
this 31st day of October, 2012 DISTRICT JUDGE & ASJ
I/C (WEST) DELHI
SC No.14/12 Page 11 of 14
IN THE COURT OF SH. O.P. GUPTA DISTRICT JUDGE & ASJ I/C (WEST), DELHI *** SC No. 14/12 Unique ID No. 02401R0103152012 State Vs. Om Prakash s/o Sh. Shyam Lal r/o D3/3, Phase5, Om Vihar Uttam Nagar, New Delhi.
FIR No. 98/12 PS: Uttam Nagar U/s: 326/ 307 IPC Date of Conviction : 31.10.2012 Date of Arguments on sentence : 31.10.2012 Date of Order : 31.10.2012 ORDER ON SENTENCE:
Accused has been convicted u/S 307 IPC vide separate judgment passed today by this Court. I have heard on the quantum of sentence.
2. Ld. Addl.PP submitted that the act of the accused was quite irresponsible. He put the victim to dangerous consequences. The injured has been defaced by the incident and no leniency should be shown to the accused. Since the victim received injuries, case falls under part (2) of Section 307 SC No.14/12 Page 12 of 14 IPC in which the imprisonment can extend up to life.
3. Per contra the counsel for convict submitted that convict is an old person aged about 60 years. He has no previous involvement. The act was not preplanned. It was just on the spur of moment. The accused has already faced trial for 1 year and 8 months. He remained in custody from 23.02.2011 till 25.03.2011. He prayed for a lenient view.
4. No one is too old to receive a punishment as per decision in R.K.Aggarwal Vs State of Orissa AIR 1976 Supreme Court 1774 wherein it was held that "Who knows this jail life of an old man may by a process beyond our ken, kindle in him a new flame of search for the truth and make him a finer person, inside and outside?
No one is too old to become good and De Profundis was written in prison by a sex pervert who was also a literary genius."
5. The punishment must be such which has a deterrent effect. Keeping in view the facts and circumstances of the case and the rival submissions, I feel that sentence of RI for 4 years would meet the ends of justice. The convict is sentenced to RI for 4 SC No.14/12 Page 13 of 14 years and fine of Rs.3,000/. In default further RI for 3 months. Benefit u/S 428 CrPC be given. File be consigned to record room.
Announced in open Court on (O.P. GUPTA)
this 31st day of October, 2012 DISTRICT JUDGE & ASJ
I/C (WEST) DELHI
SC No.14/12 Page 14 of 14