u/s 324 IPC vs. u/s 320 IPC, MLC report

IN THE COURT OF SH ANUJ AGARWAL: MM-03(SD)
SAKET COURT: DELHI

State Vs. Nisar etc.
FIR N0. : 17/2008
U/S : 326/34 IPC
PS : Neb Sarai

JUDGMENT
a) Sl. No. of the case : 02403Ro175892009
b) Date of institution of the case : 30.06.2008
c) Date of commission of offence : 29.10.2008
d) Name of the complainant : Sehzadi
e) Name & address of the 1. Nisar S/o Sh. Rahis Mohd,
accused persons R/o House no. L-1st, 13/119 Sangam
Vihar, New Delhi.
2. Babloo @ Wali Mohd.
S/o Sh. Rayeesh Mohd.
R/o L-1st Sangam Vihar, New Delhi.
f) Offence complained of : 326/34 IPC
g) Plea of the accused persons : Pleaded not guilty
h) Arguments heard on : 02.06.2016
i) Final order : Convicted u/s 324/34 IPC
j) Date of Judgment : 04.06.2016

BRIEF STATEMENT OF REASONS FOR DECISION:

1. The charge-sheet in the present case has been filed by prosecution with the allegations that on 29.10.2008, at about 9:30pm, at L-1st Gali no. 13 near House no. 58, Sangam Vihar, New Delhi, within jurisdiction of PS Neb Sarai, accused persons in furtherance of their common intention threw acid on the complainant Sehzadi, (while riding a motorcycle) and voluntarily caused grevious injuries to the complainant and thereby alleged to have committed offence U/sec. 326 IPC r/w Sec. 34 IPC.

2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused persons were consequently summoned. A formal charge for commission of offence U/sec. 326/34 IPC was framed against both the accused persons by my Ld. Predecessor to which they pleaded not guilty and claimed trial.

3. In order to substantiate the allegations, twelve witnesses have been examined on behalf of the prosecution. The relevant and material extract of their testimony is as under:-

4. PW-1 Sehzadi is the complainant in the present case, who deposed that in the year 2008, she was doing a private job and she knew accused Nisar, who is her bua nand’s son. She further deposed that accused owned a general store and she used to visit his shop to purchase eatable items and also used to make call from the telephone on his shop. She further deposed that she fell in love with him and she wanted to marry him but accused did not want to marry. She further deposed that on 29.10.2008, she alongwith her aunt namely Fatima were going to purchase some items from Budh Bazar and when she reached in front of house no. 58 at about 9:00-9:50pm, for recharging her mobile phone from coupon, meanwhile accused Nizar and Bablu came on a motorcycle. She further deposed that motorcycle was being driven by Bablu and Nisar was pillon rider. She further deposed that accused Nisar threw some water type liquid on her body, due to which she started feeling ‘ Jalan ‘ on her body . She further deposed that thereafter she moved ahead and saw a person filing water, who threw water on her body. She further deposed that someone had made a call at 100no on which PCR came and her father and uncle reached at the spot . She further deposed that she had given complaint Ex. PW 1/ A to the police. The case property is Ex. P1( Colly). She correctly identified both accused persons.

5. PW-2 Babudeen, who deposed that one child aged about 10-12 years came to him and stated that someone had poured acid on her daughter namely Sehzadi. He further deposed that he reached at the spot i.e gali no. 13, L-st Sangam Vihar, New Delhi and saw that the clothes of her daughter were fully burnt and someone called at 100no. He further deposed that police had reached at the spot and shifted injured to the hospital. He further deposed that after sometime, he alongwith police officials reached at the shop of Nisar and they did not find them and subsequently they went to his house from where he was apprehended by the police.

6. PW-3 Puney Dev, who deposed that on the day of incident at about 8:00-9:00pm, he was filing water outside his house and he saw that a girl was coming running and was shouting that “kisi ne mere pe tejaab daal diya pani do”.

7. PW- 4 Dr. Diksha Kaushal, who proved MLC as Ex. PW 4/ A of victim . She further deposed that the MLC was prepared by Dr. Prerna, whom, he has seen writing & signing in official course of duty.

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8. PW-5 Dr. Prerna Nembang, who deposed that on 29.10.2008, at about 11:10pm, she had conducted medical examination of injured Sehzadi. The photocopy of MLC is Ex. PW 4/ A. She further deposed that she had prepared the whole prescription of MLC. During her cross-examination she admitted that the injuries of patient are not covered u/s 320 IPC which defines grevious injuries. She further deposed that she cannot tell as per MLC whether the nature of injuries were grevious or not as follow up paper is required for the same.

9. PW- 6 is Ct. Chanderbhan, who deposed that on 10.11.2008, he was posted as Constable at PS Neb Sarai. He further deposed that on that day, he joined the investigation of the present case with IO ASI Karamveer Singh. He further deposed that they went to the residence of accused Bablu @ Balli Mohd. i.e. L-I, 13/119, Sangam Vihar, New Delhi and IO arrested the accused Bablu @ Balli Mohd. vide arrest memo is Ex.PW6/A. He further deposed that IO conducted the personal search of accused Bablu @ Balli Mohd. vide memo Ex. PW6/B and recorded disclosure statement of accused Bablu @ Balli Mohd.Ex.PW6/C. He further deposed that he also got recovered one motorcycle no. DL-3SAX-4697 make Discover and same was seized by the IO vide Ex.PW6/D. He further deposed that IO recorded his statement at the spot. He further deposed that they came to the PS and case property was deposited in malkhana.

10. PW-7 is Ct. Surender, who deposed that on 30.10.2008, he was posted as Ct. at PS Neb Sarai. He further deposed that on that day he joined the investigation of the present case with IO ASI Karamveer Singh. He further deposed that they went to the spot and came to know that injured had already been taken to Safdarjung Hospital by PCR Van. He further deposed that they reached at Safdarjung Hospital and came to know that injured had already left the hospital after taking the first aid. He further deposed that IO collected the MLC Ex. PW4/A, of the injured Sehjadi and they went to her residence at Sangam Vihar and IO recorded her statement Ex PW1/A and handed over the same to him for registration of FIR. He further deposed that IO prepared site plan Ex PW7/A. He further deposed that IO tried to search the accused persons and found accused Nisar at his residence. He further deposed that IO arrested the accused Nisar, vide arrest memo is Ex.PW7/B and IO also conducted the personal search of accused Ex. PW7/C . Accused Nisar made a disclosure statement Ex.PW7/D. He further deposed that IO seized the clothes i.e. suit salvar of the injured Ex PW7/E. He further deposed that IO recorded his statement at the spot. He correctly identified accused Nisar and case property is Ex P1 (colly).

11. PW- 8 is Ct. Amarpal, who deposed that on 15.05.2009, he was posted at PS Neb Sarai. He further deposed that on that day, he collected the pullanda of present case duly sealed with the seal of ‘KS’ on the direction of IO from MHC(M), P.S. Neb Sarai and deposited the same at FSL, Rohini vide RC No. 39/21/09 vide Ex PW8/A. He further deposed that after depositing the same, he handed over the receipt to MHC(M).

12. PW-9 HC Rajender is the duty officer who recorded the formal FIR. He proved copy of FIR as Ex.PW 9/A and endorsed on rukka, Ex. PW 9/ B.

13. PW-10 is SI Karambir Singh, who is the investigating officer of the present case, he deposed that on 30.10.2008, he was posted as ASI at PS Neb Sarai and he received the DD entry no. 30A Ex PW10/A. He further deposed that he along with Ct Surender went to the spot i.e. H. No. 58, Gali No.13, L-1 st Sangam Vihar and came to know that injured Sehjadi on whom acid was thrown, had already been taken to Safdarjung Hospital by PCR Van. He further deposed that they reached at Safdarjung Hospital and came to know that injured had already left the hospital after taking the first aid. He further deposed that he collected the MLC Ex PW4/A, of the injured Sehjadi and they went to residence of injured Sehjadi at Sangam Vihar and he recorded her statement Ex PW1/A and prepared rukka Ex PW9/B. He further deposed that he handed over the same to Ct Surender for registration of FIR. He further deposed that he prepared site plan Ex PW7/A at the instance of father of injured Sehjadi. He further deposed that he also seized the clothes i.e. two suit salwar of injured Sehjadi after sealing the same with seal of KS, vide seizure memo Ex PW7/E. He further deposed that he tried to search the accused persons and found accused Nisar at his residence and he arrested the accused Nisar vide arrest memo is Ex.PW7/B. He further deposed that he also conducted the personal search of accused vide memo Ex. PW7/C, disclosure statement of accused Nisar Ex.PW7/D. He further deposed that on 10.11.2008, he arrested the accused Bablu vide arrest memo is Ex.PW6/A, personal search of accused Bablu Ex. PW6/B, disclosure statement of accused Bablu Ex.PW6/C . He further deposed that accused Bablu got recovered motorcycle bearing no. DL 3S AX 4697 which was seized vide memo EX PW6/D. He further deposed that he sent the clothes of the injured Sehjadi, which was seized by me to FSL on 18.05.2009. This witness correctly identified the accused Nissar, Bablu and case property Ex P1.

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14. PW -11 is Sh. Awadh Kumar, who deposed that on 29.10.2008 at about 9:30pm, he was having dinner at his residence and at that time, he heard noise from outside and on this, he came out and saw a girl lying on the road and after sometime police gypsy came at the spot.

15. PW-12 is HC Surender Singh, who deposed that on 29.10.2008, he was posted as HC in PS Neb Sarai and on that day, he was duty officer from 08.00 pm to 08.00 am in the PS and at about 10.32 pm, he received a call from Control Room SD regarding acid attack at H. No. M-1-A1/58, Gali No.13, Sangam Vihar. He further deposed that a DD no. 30A was prepared regarding the same vide memo Ex PW10/A and handed over the same to ASI Karambir who alongwith Ct. Surender reached at the spot.

16. On Conclusion of PE, statement of accused u/s 313 CrPC was recorded, wherein all the incriminating evidence was put to them. The accused denied the same as incorrect and stated that they have been falsely implicated. Accused examined one witness as defence witness in their favour.

17. DW-1 is Smt. Munni Begum, who had deposed that in the year 2008 police arrested both of his sons. She further deposed that her sons were falsely implicated as his younger son Nisar refused to marry with complainant.

18. I have heard the arguments as advanced by the Ld. APP for the State and Ld defence counsel.

19. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.

20. It has been argued by the Ld. APP that the prosecution has successfully proved its case beyond all reasonable doubts. It is contended that in the light of testimony of PW-1 and her MLC Ex. PW 4/ A there remains no doubt about the guilt of the accused persons. It is argued that the accused persons deserve to be convicted for the offence with which they have been charged.

21. Per contra, it is contended by Ld. defence counsel that the accused persons have been falsely implicated in the instant case. It is further argued that there are material contradiction in the testimony of prosecution witnesses and thus a reasonable shadow of doubt is cast upon the prosecution version.

22. In view of the submissions made, I proceed to analyze the evidence led on behalf of the prosecution.

23. PW-1 is the complainant/ injured and whole case depends upon her testimony. Perusal of her testimony reveals that she has gone whole hog with the prosecution case. In her testimony, she has categorically deposed that accused Nisar and Bablu came on motorcycle and accused Nisar, who was pillion rider, threw some water liquid on her body, due to which she started feeling ‘Jalan’. Therefore, it is evident that the witness has stated about the exact role of each accused who were subjecting her to crime. She also correctly identified both the accused. Complainant faced grueling cross-examination but defence could not elucidate anything from her. Ld. defence counsel failed to dislodge the credibility of complainant in the witness box.

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24. The law regarding the injured who is the victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of the injured witnesses, the Court has to bear in mind that the presence of such witnesses at the time and place of the occurrence cannot be doubted. While appreciating their evidence, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The complainant is the victim of the offence in the present case. She is the best witness to describe the manner in which the offence is committed by him. Being the victim of the crime she would be most keen to ensure that the real culprit does not go scot free and there is no reason that she would frame innocent persons in such a serious offence which she has alleged completely knowing its implications.

25. It has been argued by Ld defence counsel that the MLC of injured mentions the history of acid attack by unknown persons, whereas the complainant knew accused prior to the incident and therefore said omission is fatal to the prosecution. I do not agree with Ld. defence counsel as mere omission to mention the name of accused on the MLC of the injured is not such a grave omission as to go into the root of the matter.

26. In the present case, the testimony of complainant is cogent and convincing against the present accused regarding the alleged assault. Furthermore, the ocular testimony of complainant is duly supported by the medical evidence available on record i.e. MLC Ex. PW 4/ A , wherein the 12% superficial chemical burn on back has been reported. The complainant in her testimony has also deposed in no unclear terms that accused threw some water type liquid on her, due to which she started feeling ‘Jalan’ on her body. The MLC of the injured mentions the injuries as chemical burn injuries therefore, it is also proved beyond reasonable doubt that the accused had thrown a corrosive substance on the injured. Therefore, the prosecution has established that the complainant was attacked by accused with some corrosive substance i.e acid, due to which she suffered burned injuries.

27. Though, the MLC of injured mentions the injuries as grevious, however, the concerned doctor, who was examined as PW-5 in her testimony has deposed that the injuries on the patient ( i.e injured) are not covered u/s 320 IPC. Further, the MLC Ex. PW 4/A of the injured mentions 12 % superficial burn injuries on lower back and back leg , therefore, it is clear that the injuries suffered by injured do not come within the ambit of grevious injuries as defined u/s 320 IPC and the same are in the nature of simple injuries only having been caused by a corrosive substance.

28. Therefore, in view of the above discussion, it is clear that accused Nisar had caused simple injuries to the complainant by throwing a corrosive liquid and therefore, he is liable to be convicted u/s 324 IPC.

29. The aforesaid conclusion takes me to the issue whether the accused Bablu can be convicted with the aid of Section 34 IPC. Section 34 IPC carves out an exception from general law ( that a person is responsible for his own act) as it provides that a person can also be held vicariously responsible for the act of others if he has the common intention to commit the offence. In the present case the complainant has clearly deposed that accused Nisar and Bablu came on the motorcycle being driven by accused Bablu and accused Nisar was the pillion rider and the latter threw the water type liquid on her body. Therefore, the testimony of complainant / injured clearly proves that both the accused persons acted in concert with each other having shared the common intention and committed crime in one transaction.

30. Therefore, in view of the aforesaid discussion, both the accused stand convicted of offence under Section 324 read with Section 34 IPC. Let parties be heard on the point of sentence.

Announced in the open court on 04.06.2016
(Anuj Agarwal)
MM-03(SD)/Delhi / 04.06.2016

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