Delhi District Court
State vs Mangroo Prasad on 30 June, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Mangroo Prasad
FIR No. 417/94
PS: Ashok Vihar
U/s. 324/326 IPC
JUDGMENT
A) Sr. No. of the Case : 825/2
B) The date of commission : 29/11/1994
of offence.
C) Name of the complainant : Sh. Manoj S/o Sh. Beniram,
R/o A-308, Saheed Sukhdev
Nagar, WPIA, Delhi.
D) Name & address of accused : Mangroo Prasad
S/o Abbu Parsad
R/o Jhugi near Nahal Sukhdev Nagar,
WPIA, Delhi
E) Offence complained of : U/s. 324/326 IPC
F) The plea of accused : Pleaded not guilty.
G) Final order : Convicted.
H) The date of such order : 30/06/2012
Date of Institution : 07/03/1995
Judgment reserved on : Not reserved
Judgment announced on : 30/06/2012
State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 1/14
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief the case of the prosecution is that on 29.11.2004 on receipt of DD No. 30 at PS Ashok Vihar, ASI Shiv Dev Singh went to JPN hospital and obtained the MLC of the injured. Thereafter, he recorded the statement of complainant Manoj, wherein he stated that he was residing at the given address along with his family and on that day at about 09:00 P.M., he along with his brother Hari, aged about 13 years and Udey Prakash aged about 8 years had gone to F-block mandir and while they were coming back to their house, on the way near F-block Nehar, one person aged about 30 years who was residing in the neighbourhood and whom he could identify, if shown to him, threw acid on him and his brother as a result of which they sustained injuries and he requested that legal action may be taken against him.
2. On the basis of the aforesaid statement of the complainant Manoj, a rukka was prepared by ASI Shiv Dev Singh and the same was sent to P.S, which resulted in the registration of the present case vide FIR No. 417/94 at PS Ashok Vihar and thereafter the present matter was investigated.
3. It is the case of the prosecution that on 29.11.1994 at about 09:00 P.M., on the way near canal of F - block, Ashok Vihar, Delhi within the jurisdiction of P.s. Ashok Vihar, the accused caused simple hurt on the person of Manoj and grievous hurt on the person of Hari Dutt and Udey Prakash by throwing acid upon them. On conclusion of the investigation, the charge sheet U/s. 307 IPC was filed against the accused and matter was committed to the court of Sessions. Vide order dated 11.10.1995, Ld. A.S.J held that no charge U/s. 307 IPC was made out and only the charges U/s. 326 & 324 IPC were State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 2/14 made out against the accused and the said charges were triable by the Magistrate and accordingly the matter was remanded back.
4. Vide order dated 07/10/1995 charge was served upon the accused for trial of offences U/s 324/326 IPC by the Ld. Predecessor to which accused pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence. Prosecution has examined 9 witnesses to prove its case. P.E. was closed vide order dated 23.11.2007 and statement of the accused U/s. 313 r/w Section 281 Cr.P.C was recorded to which he denied all the allegations leveled against him but preferred not to lead DE. Thereafter arguments were heard and vide Judgment dated 02.01.2010 accused was acquitted by the Ld. Predecessor of this court.
5. Aggrieved by the same, the prosecution preferred an appeal against the said order. Vide judgment dated 04.01.2011. Ld. Sessions Court was pleased to set aside the impugned judgment and remanded back the present case to this court with the directions to hear the matter afresh and record the clear and specific findings in respect of all the contentions raised on behalf of the appellant/prosecution.
6. Written arguments were submitted by the Ld. Counsel for the accused.
7. It has been contended by the Ld. Defence counsel that there is gross contradictions in the testimonies of the witnesses examined, in particular PW-1, PW-2 and PW-5 who are the injured have given intra contradictory State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 3/14 statements and accordingly, cannot be relied upon. It has been argued that PW-1 has specifically stated that it may be possible that Naresh Pathak poured Acid on his face and accordingly, it is not clear as to who was the person who has poured the acid. It has been further argued that PW-3 Smt. Maneshwari, mother of the injured/victims have stated that Ram Naresh is the person who has done this incident to her children and that she had not seen the accused Mangroo Parsad pouring the acid on her children. He has further argued that whereas PW-1 and PW-2 have deposed that they were shown some persons at Police Station for identification of the other accused, PW-5 has denied so. Further that the mug through which the acid was thrown was not taken into possession by the police and the photographs which were taken by the police were not placed on record.
8. On the contrary Ld. APP for the state has stated that the prosecution has been sufficiently able to prove the guilt of the accused and that keeping in view the age of the public witnesses /injured at the time of incident the minor contradictions in their testimonies should not be given much weightage.
9. I have heard the parties concerned and have gone through the written submissions as well as the case file. In my opinion the prosecution has been able to bring home the guilt of the accused beyond any reasonable doubt.
10. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 4/14 be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved;
and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Section 324 provides "Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Hurt has been defined by section 319 IPC which reads as under.
" Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
In order to prove the culpability of the accused u/s 324 IPC, the prosecution is State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 5/14 required to prove the following ingredients:-
(i)That the accused voluntarily caused hurt to another person;
(ii)That such a hurt was in exception to cases provided under Section 334 I.P.C ;
(iii)That such hurt was caused
(a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death; or
(b) by means of fire or any heated substance; or
(c) by means of any poison or any corrosive substance; or
(d) by means of any explosive substance; or
(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or
(f) by means of any animal.
Section 325 IPC provides "Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine ".
Grievous hurt has been defined by section 320 IPC. It provided "The following kinds of hurt only are designated as "grievous":-
First. - Emasculation.
Secondly. - Permanent privation of the sight of either eye. Thirdly. - Permanent privation of the hearing of either ear. Fourthly. - Privation of any member or joint. Fifthly. - Destruction or permanent impairing of the powers of any member or joint.
Sixthly. - Permanent disfiguration of the head or face.State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 6/14
Seventhly. - Fracture or dislocation of a bone or tooth. Eightly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
In order to prove the culpability of the accused u/s 326 IPC, the prosecution is required to prove the following ingredients:-
(i)That the accused caused grievous hurt to any person;
(ii)That such hurt was caused voluntarily;
(iii)That such grievous hurt (as contemplated under Section 320) was caused by any means given under Section 324 I.P.C.
11. The accused has been identified by all the three injured persons coherently. There has been argument by the Ld. Defence counsel as to whether the place where the incident took place was well lit or not and were the victims able to see the accused properly or not. It has been stated by PW-5 that the accused whom he identified correctly in the court was residing in their neighborhood. Accordingly, it can be safely assumed that just by having a glimpse of the accused at the time of incident there was a reason of the victims identifying the accused as he was their neighbor. Had he been a stranger then the veracity of their statement on the point of identification of the accused would have been under consideration.
12. PW-1 Hari Darshan has deposed that first of all the accused poured acid on him and then on his younger brother Uday Prakash and when he State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 7/14 poured the acid on his third brother, he saved himself from his jacket. This fact is corroborated by testimony of PW-9 Dr. G.S. Martolia who medically examined the victims and as per the medical opinion and MLCs Ex. PW-9/A, Ex. PW-9/B and Ex. PW-9/C, victim Hari Darshan and Uday Prakash have suffered 15-20%, 20-25% and 5% burn injuries respectively. The medical opinion supports the contention of PW-1 that victim Manoj was able to save himself by using his jacket.
13. PW-1 Hari Darshan in his cross examination has specifically mentioned that one Naresh Pathak was the person at the time of the occurrence along with the accused Mangroo Parsad but the police did not register the case against Naresh Pathak. Ld. Defence counsel has specifically pressed that the statement of PW-1 that "it may be also possible that Naresh Pathak poured acid on my face '', goes to show that pouring of acid by the accused Mangroo Prasad is in doubt and the benefit of the same should go to the accused. In my opinion Ld. Defence counsel is not taking the statements of PW-1 in totality. The witness has specifically deposed about the presence of the accused Mangroo Prasad at the place of incident, accompanied by one Naresh Pathak. The challan is silent about the identity of other accused. It may be possible that Naresh Pathak was the person with the accused Mangroo Prasad at the time of the incident against whom there is no evidence on the record but it does not absolve the liability of the accused Mangroo Prasad who has been identified by the injured persons.
14. Statement of PW-3 corroborates the testimonies of the injured persons who deposed that at about 8:30pm her two sons Uday Prakash and Manoj came to her complaining about the pouring of acid upon them. She did not depose the exact date but she deposed that the day was Tuesday which State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 8/14 indeed was. The arguments of Ld. Defence counsel that in her cross examination she has specifically stated that she had not seen accused Mangroo Prasad pouring the acid on her children is of no importance since it is not the story of the prosecution that she is the eye witness to the incident. In fact she has corroborated the testimonies of the injured persons who went to her just after the incident.
15. PW-5 Manoj Kumar who was examined almost two years after the statement of PW-3 has also deposed that he and victim Uday Prakash went to their house with burn injuries and their brother Hari Darshan remained at the spot who had injured his eyes and this fact gets corroboration from the testimony of PW-9, as per whose report the patient was semi conscious and his pupil bilateral were not reacting.
16. Ld. Defence counsel has argued that the mug through which the acid was thrown was not taken into possession by the police and the photographs which were taken by the police were not placed on record. The benefit of lapses on part of I.O cannot be given to the accused so as to throw the testimonies of witnesses and other evidences overboard. If it is allowed then it would amount to justice being played in the hands of I.O.
I may observe that considering the aspect of faulty investigations Hon'ble Supreme Court of India in case titled Ram Bihari Yadav v.State of Bihar 1998 AIR (SC) 1850 in para 13 has held "........... the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 9/14 will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
Also our own Hon'ble High Court in Manoj @ Manu Vs. State of Delhi 2000, I AD (Delhi) 67 has also categorically ruled that:
"Criminal justice should not be made casualty of wrong committed by the Investigation Officer."
17. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to built up a continuous link. There being no history of any previous animosity between the accused persons and the victim, there is no reason for the victim to have falsely implicated the accused. The witnesses have been consistent in their testimony and their version has been duly corroborated by other evidence on record.
18. It is well settled that a witness cannot be expected to narrate the incident like a parrot. Some improvements/contradictions may creep in due to fading of memory with lapse of time. These minor contradictions, moreso when the witnesses are children of tender age, should not be given undue importance unless they are so glaring so as to destroy the confidence in the witness. In the instant case I do not find any infirmity in the testimony of the injured that her testimony should be looked with suspicion.
State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 10/1419. It was held in Suryanarayana v. State of Karnataka 2001 AIR (SC) 482 that Some discrepancies in the statement of child witness cannot be made the base for discarding the testimony .
In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows : (SCC p. 343, para 5) "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
It would not be out of place to mention that Hon'ble Apex Court has in the case of State of Bihar v. Kapil Singh., 1969 AIR (SC) 53, observed that:
"a child witness can often be expected to give out a true version because of her innocence"
20. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The incident has been duly proved along with the nature of injuries received by the victims/injured. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 11/14 evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to built up a continuous link.
21. PWs have stated that immediately after the accident, injured persons were taken to LNJP hospital,where M.L.C Ex. PW-9/A, Ex. PW-9/B and Ex. PW-9/C was prepared by Dr. G.S. Martolia. Dr. G.S. Martolia has not opined the nature of injuries in the M.L.Cs. As per the M.L.C. victim Hari Darshan and Uday Prakash have suffered 15-20%, 20-25% and 5% burn injuries respectively. As per M.LCs Ex. PW-9/A and Ex. PW-9/B, on 29/11/1994 at 10:25 p.m, the injured Hari Darshan and Uday Prakash were unfit for statement and had burn due to acid thrown over them by somebody. The time of incident being approx. 09:00 p.m and injured persons being taken immediately to hospital clearly shows the injuries being causa causans of the incident.
22. Now, the question arises whether the nature of injuries are grievous or simple in nature so as to adjudicate whether offence u/s 324 I.P.C or 326 I.P.C is made out. The concerned doctor who prepared the M.L.C has not opined the nature of injuries in the M.L.C. No cross examination of the said doctor on this aspect was done by Ld. APP. There is no evidence on record which goes to show whether the injury received as a result of acid thrown on the person of injured persons, there was permanent disfigurement of the faces of the injured persons or if they were in severe bodily pain during the space of twenty days, or were unable to follow their ordinary pursuits. Prosecution has also failed to prove if the case falls under any of the eight kind of hurt that are designated as "grievous" by Sec. 320 I.P.C.
State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 12/1423. In my opinion, the ingredients of Sec.320 is not made out though the injuries sustained by the injured can be said to cause hurt to him within the domain of Sec.319 I.P.C which reads as under.
" Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
It can be deduced safely from the state of things that has emanated that the accused caused hurt to the injured.
I am fortified in my opinion by the law laid down in Nazar Mohd. @ Hanuman v.State of Delhi by Hon'ble High Court Of Delhi in para 12, "The prosecution had examined Hari Babu Gupta, Record Clerk Irwin Hospital, New Delhi as PW/7, who has proved the M.L.C. Exhibit PW/7/A, in respect of Kanhaiya Lal having signatures at point X to be in the hand of Dr. O.P. Khere. This M.L.C. was prepared by Dr. Khere. He has also proved the endorsement at point Y to be in the hand of Dr. S.K. Kukreja who declared the injuries of Kanhaiya Lal to be grievous. He has also proved endorsement at point 'Z' regarding the injured to be unfit for statement to be in the hand of Dr. Vijay Kumar Sharma. He has also claimed that the whereabouts of these Doctors were not known. As already referred to, all that has been stated by Kanhaiya Lal, injured was that he remained in the hospital for seven days. There is nothing in his statement to indicate that the accused had expressed his intention to kill this witness by use of force. The Doctor who declared the injuries to be grievous has not been examined and thus we do not have on record the material to indicate as to what were the reasons for the Doctor coming to the conclusion that the injuries were grievous in nature. The M.L.C. does not indicate that there was any fracture nor there is any such claim by Kanhaiya Lal injured. In these circumstances I am clearly of the view that the injuries have to be termed as simple caused by sharp object and in this way offence would fall under Section 324. In case Ganga Ram v. State, (1968 Crl. LJ. (Vol. 74) it has been held that even if the Doctor is examined but the record of the operation, etc. is not produced and it is not clear from his statement as to how he came to the conclusion about the injury to be 'grievous' it State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 13/14 should be deemed to be "simple" in nature. In case Om Prakash Daulat Ram v. State, 1969 Cr. LJ (Vol. 75) 250, it has been held that if the reasons on which the injuries are declared as grievous are not given in court, the same are to be treated as 'simple'. In these circumstances the offence proved against the appellant would be under Section 324, IPC only" .
24. Thus, the prosecution has been able to prove the guilt against the accused beyond the shadow of doubt, though the nature of injuries could not be proved as "grievous". Accordingly the accused is held guilty and convicted for offence U/s. 324 IPC in the present case.
. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on June 30th, 2012.
State V/s Mangroo Prasad FIR No. 417/94 PS: Ashok Vihar Page No. 14/14