Delhi District Court
Also At : vs State (Gnct Of Delhi) on 31 May, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Criminal Appeal no. 26/2/2015
U.I.D. N0. 54238/2016
P.S. Rajouri Garden
Mohd. Saleem,
S/o Mohd. Abdul Hayat,
R/o Village Shahpur Majhol,
P.S. Navhatta, District Saharsa,
Bihar.
Also At :
Jhuggi No. 987, T.C. Camp,
Raghubir Nagar, Delhi.
......... Appellant
Versus
State (GNCT of Delhi)
....... Respondent
Date of filing: 20.06.2014 Date of arguments: 31.05.2017 Date of order: 31.05.2017 J U D G M E N T
1. The present appeal is filed by the appellant/accused UID No.54238/2016 Mohd. Salim Vs State 1 of 14 under Section 374 of Code of Criminal Procedure (hereinafter referred as Cr.P.C.) against the judgment of conviction dated 08.05.2014 and order on sentence dated 21.05.2014 passed by the court of Sh. Dhirendra Rana, Ld. Metropolitan Magistrate02, West District, Tis Hazari Courts, Delhi, in a complaint case no. 222/II/2003.
2. Brief facts: An FIR bearing no. 931/2001 was registered in the Police Station Rajouri Garden, Delhi for the commission of the offence punishable under Section 324 IPC. It is alleged by the complainant Mohd. Roshan that on 03.10.2001 the accused had poured acid on his back around 4.00 AM. The FIR was initially registered under Section 324 IPC but later on after obtaining the opinion from the Doctor regarding the nature of injuries Section 326 IPC was added. The accused was arrested and after completion of the investigation, chargesheet was filed. The charge for the commission of the offence under Section 326 IPC was framed on 03.07.2004 to which accused UID No.54238/2016 Mohd. Salim Vs State 2 of 14 pleaded not guilty and claimed trial. After completion of the trial the accused was convicted for the offence punishable under Section 326 IPC.
3. The appellant/convict being aggrieved by the judgment of conviction dated 21.05.2014 has filed the present appeal. It is submitted that the Ld. Trial Court has grossly erred in not considering the inherent inconsistencies and glaring contradictions in the story of prosecution. It is stated that PW1 has deposed that at about 4 AM, he got up for urinating whereas PW2 and PW3 have deposed that their father woke them up and told that he is going for urinating.
4. That the Ld. Trial Court has fails to consider the submissions of the appellant made in statement of the accused under Section 313 Cr.P.C. whereas he has denied the commission of the alleged offence.
5. It is further stated that the accused has been falsely implicated in the present case. That PW2 in his statement under Section 161 Cr.P.C. has stated that in the morning at about 4.00 AM, UID No.54238/2016 Mohd. Salim Vs State 3 of 14 father woke him up and told that he is going for urinating. That the Ld. Trial Court has failed to consider that PW4 is a hearsay witness. That the prosecution has not produced any witness from FSL or any other concern forensic department to prove the presence of acid on the clothes of the victim. That PW6 Doctor Praveen, CMO has deposed completely against the prosecution case. That the Ld. Trial Court has failed to consider that PW2, PW3 and PW4 are in blood relation/relation with the complainant, therefore, their testimony cannot be relied upon. That the Investigating Officer had not seized the clothes and other samples of the injured and also did not send them to FSL for forensic inspection.
6. It is prayed that in view of the grounds of appeal the judgment of conviction dated 08.05.2014 and order of sentence dated 21.05.2014 may kindly be set aside and the appellant be acquitted.
7. The notice of the appeal was issued to the State/respondent, which is accepted by Learned Addl. PP for the State. The appeal is strongly opposed by the Ld. Addl. P.P. for the UID No.54238/2016 Mohd. Salim Vs State 4 of 14 State. It is argued by the Ld. Addl. P.P. for the State that there is no illegality or infirmity in the order passed by the Ld. Trial Court.
8. I have carefully perused the material on record and heard the Ld. Counsel for appellant/convict and Ld. Addl. P.P. for the State.
9. In the present case, the appellant/accused is convicted for the commission of the offence punishable under Section 326 IPC. There are allegations against the appellant/accused that he had poured acid on the body of the complainant. The motive behind the offence was alleged to be the illegal relationship between the convict and the wife of the complainant.
10. The prosecution to prove its case has examined the complainant/injured PW1 Mohd. Roshan. PW2 Mohd. Rustam and PW3 Mohd. Sohrab are the sons of the complainant and the eye witnesses of the incident. PW4 Smt. Madina is the sister in law of the victim who corroborated their statement. PW6 Doctor Parveen had proved the MLC of the injured/complainant Ex. PW6/A. PW5 HC Jagdish is the Duty Officer and PW SI Om Parkash is the UID No.54238/2016 Mohd. Salim Vs State 5 of 14 Investigating Officer of the case.
11. The appellant/convict has pointed out the contradiction in the testimony of the PW1 regarding the fact that he nowhere mentioned that before going out for urinating, he got PW2 and PW3 woke up. It is well settled law that minor contradictions in the testimony of the witnesses are bound to happen. The minor contradictions which does not goes to the root of the case, are not relevant to raise shadow of doubt on the prosecution case. It is only the material contradictions which goes to the root of the case are relevant to be considered. The fact whether the victim before going out for urinating has woken up his sons or not, is not so material to raise the shadow of doubt, upon the story of the prosecution. The PW1 , PW2 and PW3 in their testimony have specifically deposed that when the accused had poured acid on the body of the complainant, on hearing the cries, the PW2 and PW3 came out of the house and saw the accused. There is no contradictions in the testimony of the complainant/PW1 and other two witnesses i.e. PW2 UID No.54238/2016 Mohd. Salim Vs State 6 of 14 and PW3 regarding this fact.
12. The appellant/convict has also contended that the Ld. Trial Court has failed to consider the statement of the accused recorded under Section 3131 Cr.P.C. whereby he denied the commission of the alleged offence and the presence at the spot. It is well settled law that the statement of the accused recoded under Section 313 Cr.P.C. is not a piece of evidence. The provision of Section 313 Cr.P.C. gave an opportunity to the accused to explain his position qua the allegations/evidence produced on record by the prosecution. The explanation furnished in the statement under Section 313 Cr.P.C. would not be relied upon by the court unless it is corroborated with some material evidence on record. The appellant/convict has failed to produce on record any evidence to support this defence raised by him in his statement under Section 313 Cr.P.C. The appellant/accused has neither himself come in the witness box nor the relevant witness who could have proved his defence were examined by him. It is also pertinent to mention that UID No.54238/2016 Mohd. Salim Vs State 7 of 14 the appellant/accused had obtained four opportunities for defence evidence but no witness was examined. In the absence of any evidence produced on record by the accused, the defence raised in the statement under Section 313 C r.P.C. is not sufficient to throw the case of the prosecution.
13. The appellant/accused has also pointed out that PW4 Smt. Madina is the hearsay witness. It is no doubt true that PW4 Smt. Madina had not witnessed the incident of pouring of the acid upon the person of the complainant. However, the statement of PW4 is also relevant to the present case. PW4 has corroborated the fact that around 4 AM, son of the victim came to her Jhuggi and informed her that somebody had poured acid on the back of the victim. PW4 has accompanied the victim to the hospital. It is clear from the perusal of the testimony of PW4 that even though she was not present at the time of incident, but her testimony has corroborated by the testimony of complainant/injured and other PWs.
14. It is contended by Ld. Counsel for the appellant/accused UID No.54238/2016 Mohd. Salim Vs State 8 of 14 that PW6 has deposed contrary to the record. The Ld. Counsel for appellant/accused has fails to specifically point out on which point PW6 Doctor Parveen has deposed contrary to record. PW6 Doctor Parveen in her deposition before the Court has proved the MLC of injured Ex. PW6/A. PW6 in her deposition before the court has described the burn injury received by the victim. PW6 during her cross examination has specifically stated that during the medical examination of the injured she had felt the smell of the acid, therefore she confirmed that it was acid burn injury.
15. It is also contended on behalf of the appellant/accused that PW2, PW3 and PW4 are in relation with the victim/injured, therefore, their testimony should not be relied upon as they are interested witnesses. It is well settled law laid down by the Hon'ble Apex Court and reiterated by the Hon'be High Courts there would not be any shadow of cloud upon the reliability of the testimony of the witness merely on the ground that he is relative of the victim/injured. The existence of the relationship with the victim/injured is not itself a UID No.54238/2016 Mohd. Salim Vs State 9 of 14 ground to discard his testimony. It is for the accused to point out some material basis on the basis of which it could be presumed that the witnesses are interested or deposing falsely against the accused. Where the witness have faced the test of cross examination by the Counsel for the accused and stood on the test of cross examination, then no aspersion should be casted on his reliability merely because he is related to the victim/injured. In the present case, the testimony of the PW1 complainant/injured Mohd. Roshan remained unrebutted and unchallenged. The accused had failed to cross examine PW1 Mohd. Roshan despite grant of opportunities. It is not out of place to mention that appellant/accused has been granted another opportunity to cross examine PW1 on the application under Section 311 Cr.P.C. but by the time the complainant/PW1 had expired. The Ld. Trial Court while allowing the application under Section 311 Cr.P.C. vide order dated 24.07.2010 has clarified that the witness is allowed to be summoned subject to the condition of availability and in case the witnesses are not cross examined for any reason whatsoever, the UID No.54238/2016 Mohd. Salim Vs State 10 of 14 testimony already recorded shall be read against the accused.
16. I have relied upon one judgment of Hon'ble Supreme Court of titled as Sucha Singh and Another Vs State of Punjab AIR 2003. In this judgment it was observed as under: "21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicious and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law {See Gurbachan Singh Vs Satpal Singh and Others, AIR 1990 SC 209: 1990 (1) RCR (Crl.) 297 (SC) }. Prosecution is not required to meet any and every hypothesis put forward by the accused. {See State of U.P. Vs Ashok Kumar Srivastava, AIR 1992 SC 840: 1992 (3) RCR (Crl.) 63 (SC)}. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. IT must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. {See Inder Singh and Anr. Vs Stae of (Delhi Admn.) (AIR 1978 SC 1091}. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal UID No.54238/2016 Mohd. Salim Vs State 11 of 14 trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. " (Per Viscount Simon in Stirland Vs. Director of Public Prosecution (1994 AC (PC) 315) quoted in State of UP Vs Ail Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth."
17. The non recovery of the container used to carry acid or the clothes of the injured worn by him at the time of incident by the Investigating Officer does not cast a shadow of doubt upon the story of the prosecution. The story of the prosecution could not be doubted merely because the Investigating Officer has failed to investigate properly.
18. I have also relied upon judgment titled as Father Shephard Vs. State of NCT of Delhi 2007 (2) CC Cases HC 472 wherein it is held as under: "Merely because the investigation has been conducted in a slip shod and defective manner and some lacunas have been left by the IO, an accused cannot be acquitted".
19. In the present case, the victim/injured has received the UID No.54238/2016 Mohd. Salim Vs State 12 of 14 acid burn injuries. The nature of the injury, opined by the examining Doctor, on the MLC Ex. PW6/A, is grievous in nature. PW6 examining Doctor has gave her opinion that the injuries suffered by the victim/complainant were caused due to the acid burn.
20. The perusal of the impugned judgment reveals that the Ld. Trial Court has given cogent reasons in consonance with the settled principle of the law to arrive at a conclusion that the accused has committed the offence. There is no illegality or infirmity in the impugned judgment dated 21.05.2014 passed by the Ld. Trial Court. None of the grounds mentioned by the appellant/accused are sustainable in the eyes of law. The Ld. Trial Court has already taken a lenient view while sentencing the appellant/accused. Accordingly, the appeal filed by the appellant/accused is dismissed. The judgment dated 08.05.2014 and order on sentence dated 021.05.2014 passed by the court of Sh. Dhirender Rana, Ld. Metropolitan Magistrate02, West District, Tis Hazari Courts, Delhi, is upheld.
21. Attested copy of a judgment be given to the UID No.54238/2016 Mohd. Salim Vs State 13 of 14 appellant/convict free of cost.
22. The appellant/convict Saleem be taken into custody and sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.4,000/ under Section 326 IPC and in default of payment of fine, convict shall undergo further simple imprisonment for one month. The benefit of Section 428 Cr.P.C. be given to convict. The personal bond and surety bond of appellant/convict be cancelled.
23. Appeal file be consigned to record room after completion of necessary formalities.
24. Trial Court Record be sent back along with copy of this judgment.
Announced in the open court today i.e. 31st May, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No.54238/2016 Mohd. Salim Vs State 14 of 14