IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO. 221 OF 2017 BETWEEN:
DILEEP S/O PRAKASH AGED ABOUT 22 YEARS R/A DODDATHOGURU ELECTRONIC CITY BENGALURU – 560100. ... APPELLANT (By Sri: KAPIL DIXIT, ADVOCATE) AND:
THE STATE OF KARNATAKA BY ELECTRONIC CITY POLICE STATION, BENGALURU REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU-560001. ... RESPONDENT (By Sri:K.NAGESHWARAPPA, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER OF CONVICTION DATED 18.10.2016 PASSED BY THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE C/C OF IX ADDITIONAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN S.C.NO.71 OF 2014 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 326A AND 307 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 10 YEARS AND PAY FINE OF RS.8,08,000/-, IN DEFAULT TO PAY FINE AMOUNT, HE SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 3 YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 326(A) OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF 5 YEARS AND PAY FINE OF RS.6,06,000/-, IN DEFAULT TO PAY FINE, HE SHALL FURTHER UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 2 YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF IPC. SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
***** THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is directed against the judgment dated 18.10.2016 passed by the VIII Additional District and Sessions Judge C/c of IX Additional District Judge, Bengaluru Rural District, Bengaluru in S.C.No.71 of 2014 – wherein the appellant (hereinafter referred to as “accused”) is convicted for the offences punishable under Sections 326A and 307 of Indian Penal Code. He is sentenced to undergo rigorous imprisonment with hard labour for a period of ten years and to pay fine of Rs.8,08,000/-, in default of payment of fine amount, to undergo simple imprisonment for a period of three years for the offence punishable under section 326(A) of Indian Penal Code. Further he is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.6,06,000/-, in default of payment of fine amount, to further undergo simple imprisonment for a period of two years for the offence punishable under section 307 of Indian Penal Code. Out of the total fine amount of Rs.14,14,000/-, Rs.14,10,000/- is directed to be given to the injured complainant towards plastic surgery, disfigurement and for further treatment by way of compensation under section 357(A) of Cr.P.C. The substantive sentences are ordered to run concurrently.
2. The case of the prosecution is that the victim –PW.7 was earlier married to one Shrikanth. She had a daughter, then aged about two years born through her husband Shrikanth. However, her husband having deserted her, she developed intimacy with the accused. The accused was a driver by profession. The accused and the deceased started residing in a rented house at Doddathoguru, owned by PW.5. On 02.10.2013 between 4.00 a.m. and 4.30 a.m., the accused is stated to have picked up a quarrel with the victim and poured acid on her head, face, mouth, nose, ear, eyes and eyebrows. She was shifted to Victoria Hospital. Her complaint was recorded by PW.11 – the P.S.I. of Electronic City Police Station. Based on the said complaint, Crime No.374/2013 came to be registered against the accused. The accused was arrested on the same day. He was also subjected to medical examination and was found to have sustained superficial burn injuries on his right and left fore-arm and dorsum of the hand and small injury on chest. On completing the investigation, charge-sheet was laid against the accused.
3. The accused having denied the charges, in order to prove its case, the prosecution examined 13 witnesses and produced in evidence 14 documents marked as Exhibits P1 to P14 and the material objects at M.Os.1 to 3(b).
4(a) PW.1 and PW.2 are the panch witnesses to the spot mahazar Ex.P1 whereunder the acid can - M.O.1 and the half burnt nylon top of the victim – M.O.2 and a small plastic bottle – M.O.3 were seized. Both these witnesses have failed to support the case of the prosecution and they have been treated as hostile witnesses.
(b) PW.3 was the Police Constable attached to the Electronic City Police Station at the relevant time. He submitted the seized articles to F.S.L., Bengaluru for chemical analysis.
(c) PW.4 is the Medical Officer of the Primary Health Centre, Singasandra who examined the accused on 03.10.2013 and issued the wound certificate in terms of Ex.P4. According to this witness, the accused was brought to the hospital with the alleged history of “fall of cleaning acid” on his hands on 02.10.2013 in the morning. He noticed the following injuries on the accused namely, 1. Superficial burn injury on right fore arm and dorsum of the hand.
2. Superficial burn injury on left forearm and dorsum of the hand (Irregular shaped).
3. Small injury on chest, measuring 1 cm x 2 cm and 1 cm x 1 cm.
(d) PW.5 is the owner of the house where the incident took place. He has been treated as hostile. However, he has stated that he had rented the house to one Ashok and the accused was staying in the said house.
(e) PW.6 is the Casualty Medical Officer of Victoria Hospital who has certified that the victim was in a fit condition to give her statement. The endorsement made by her finds place in the complaint Ex.P7 which has been marked as Ex.P7(a).
(f) PW.7 is the victim. She has stated that about seven years back, she had married one Shrikanth and had begotten a child through him. About five years earlier to the incident, she married the accused in a temple. They were residing in a rented house belonging to PW.5. The accused was working as a Driver in a Travel Agency. On 02.10.2013, the accused had to attend to his duties between 5.00 a.m. and 5.30 a.m. He woke her up around 4.00 a.m. At that time, PW.7 told him that she would be going to her parents’ house. Enraged by this, the accused came from bathroom holding a acid can and poured it upon her head and face. She sustained burnt injuries on head, face, mouth, nose, ear, eyes and eyebrows. When she tried to save herself, she sustained burn injuries on her both legs and hands. She further deposed that the accused tried to kill her by closing her nose and throat with bed-sheet. When she tried to catch hold of the accused, he ran away from the house. On hearing her screams, the neighbours informed her brother PW.8 who was residing at Doddategur. He shifted her to Victoria Hospital. In Victoria Hospital her statement was recorded by the police. She identified the said statement namely the complaint –Ex.P7. She further stated that on account of burn injuries, she has sustained permanent disfigurement on her right side face, right ear, nose, mouth and chin. She has also identified the acid can –M.O.1 and her burnt top –M.O.2 and the plastic bottle -M.O.3.
In the cross-examination, it was suggested to PW.7 that her brother was also residing along with the accused and PW.7 at the relevant time. PW.7 denied the said suggestion. The further suggestion made to PW.7 reads as under:
Q: Accused, my brother and witness were staying in room jointly, what do you say?
Ans: Myself and accused was staying firstly along with daughter.
She denied the suggestion that she herself threatened the accused that she would pour acid or kill him. She also denied the suggestion that she was holding acid to pour upon the accused and when the accused ran away, the said acid fell on her face and body. She has also denied the suggestion that she had enmity with the accused.
(g) PW.8 is the brother of the victim who shifted the injured PW.7 to Victoria Hospital. This witness has specifically stated that he was informed by PW.5 – the owner of the house that the accused had poured acid on his sister.
(h) PW.9 is an independent witness examined by the prosecution to speak about the incident. However, he has turned hostile.
(i) PW.10 is the Investigating Officer who laid the charge-sheet.
(j) PW.11 is the P.S.I. of Electronic City Police Station who recorded the statement of the injured in the Victoria Hospital and registered the F.I.R. and conducted substantial investigation. According to this witness, he arrested the accused on 03.10.2013 and subjected him to medical examination.
(k) PW.12 is the Scientific Officer at FSL, Madivala, who examined M.Os.1 and 2 and gave her opinion as per Ex.P12 to the effect that Sulfuric Acid was detected in M.O.1 – can and M.O.2 – burnt piece of the top belonging to the victim.
(l) PW.13 is the Senior Specialist of Victoria Hospital.
He examined the victim on 02.10.2013 at 5.20 a.m. This witness has stated that the victim was brought to the hospital with the history of acid burns by the husband. He found following injuries:
(i) 20% - 2nd degree and 3rd degree of acid burns over face, chest and limbs.
He further stated that the victim was admitted as inpatient in the hospital from 02.10.2013 to 19.10.2013. Plastic surgery was done to cover injuries. In his opinion, the above injuries were grievous in nature. The injury certificate issued by him has been marked as Ex.P9.
In the cross-examination, it is elicited that the patient was required to undergo further plastic surgery for correction of permanent scar which may cost about Rs.1.5 lakhs. He has further asserted that the injuries mentioned in Ex.P9 may not be possible to be caused by the injured herself. He has justified this answer stating that if the injured threw acid from bottle on herself, it would fall on the left side, but not on right side of her body.
5. Based on the above evidence, the trial court was of the view that the prosecution has proved its case beyond reasonable doubt and accordingly, convicted the accused for both the offences punishable under sections 326(A) and 307 of Indian Penal Code.
6. Learned counsel for the accused, however, contends that the trial court has misread the evidence. He contends that the circumstances brought out in the evidence indicate that the victim was not married to the accused. She was pressurizing him to marry her. When he refused to marry her, she poured the acid on herself and inflicted the injuries. Contending that the conclusion arrived at by the trial court is opposed to the material on record he pleads for acquittal of the accused.
7. I have considered these submissions. I do not find any substance in the contentions urged by the learned counsel for the accused. The accused has not disputed the fact that the incident had taken place at about 4.30 a.m. on 02.10.2013. He has taken up a plea that the victim herself poured acid on her, but the medical evidence produced by the prosecution completely negates the theory of self-infliction of the burns. PW.13 – the Doctor who examined the victim has unequivocally stated that the injuries mentioned in Ex.P9 are not possible to be self-inflicted. He has even justified his answer stating that if the acid was poured by the victim on herself, she could have sustained the burns on left side of her body whereas in the instant case, the acid burns were found on the right side of the body. If this evidence is considered in the light of the injuries sustained by PW.7 as noted by PW.4 - Doctor, it leaves no manner of doubt that the accused poured the acid on the victim and caused the injuries noted in the wound certificate –Ex.P9. It is convincingly established that the substance used by the accused was sulfuric acid. The opinion of the F.S.L. expert in this regard has remained uncontroverted. Though a faint suggestion was made that the acid contained in M.O.1 was diluted acid, yet the fact remains that it has resulted in second and third degree burns leading to disfigurement of the victim necessitating plastic surgery.
8. The presence of the accused at the spot of occurrence is beyond doubt. The very suggestion made by the accused to PW.7 in the cross-examination is sufficient to hold that the accused and the victim were staying together in the rented house belonging to PW.5. Further the defence set up by the accused unquestionably establishes his presence. Though the learned counsel for the accused has contended that there is no positive evidence to show that the victim and the accused were married and that they were residing together as husband and wife as contended by the prosecution, in my view, the said fact is immaterial to decide the question. The fact that both of them were residing together in a rented house belonging to PW.5 has been established beyond any doubt. It is also convincingly established that the incident took place in the said house between 4.00 and 4.30 a.m. The medical records indicate that she was taken to Victoria Hospital and was examined at 5.20 a.m. At the earliest instance, the history has been furnished to the Medical Officer implicating the accused. In her statement namely Ex.P7, the victim has narrated the events and has reiterated the same in her evidence. Her testimony is fully corroborated by the medical evidence and the expert opinion. Therefore, I do not find any justifiable reason to accept the submission of the learned counsel for the accused. The trial court has appreciated the material on record in proper perspective. I do not find any error or infirmity in the finding recorded by the trial court that the accused poured sulfuric acid on the victim and caused grievous injuries on her face, mouth, nose, ears, eyes and eyebrows and others.
9. The trial court however has convicted the accused under section 307 Indian Penal Code as well as for the offence under section 326(A) of Indian Penal Code. I do not find any material on record to substantiate the charge under section 307 of Indian Penal Code. The evidence produced by the prosecution, in my view, establishes only the ingredients of the offence punishable under section 326(A) of Indian Penal Code. There is absolutely no evidence whatsoever to show that with intent to cause the death of the victim, the accused committed such an offence. There is also no clear evidence that the injuries sustained by the victim were sufficient to cause death. In the absence of any such material, the conviction of the accused for the offence under section 307 of Indian Penal Code cannot be sustained.
10. However, the facts and circumstances proved by the prosecution clearly make out the ingredients of the offence punishable under section 326A of Indian Penal Code. Hence, I am of the view that the conviction of the accused for the offence punishable under section 326A of Indian Penal Code deserves to be affirmed and the conviction of the accused for the offence punishable under section 307 of Indian Penal Code is liable to be set-aside.
11. In so far as the sentence awarded by the trial court is concerned, the trial court has rightly imposed the sentence of imprisonment of ten years for the offence under section 326A of Indian Penal Code. The said punishment being the minimum punishment prescribed under the Code, the courts have no discretion to reduce the said sentence. Hence, the substantive sentence of rigorous imprisonment awarded by the trial court for the offence punishable under section 326A of Indian Penal Code is maintained.
12. In so far as fine is concerned, the trial court has imposed a fine of Rs.8,08,000/- for the offence under section 328(A) of IPC and further liberty is reserved to the victim to approach the DLSA or KLSA to seek adequate compensation as per section 357(A)(5) and (6) of Cr.P.C. However, I do not find any material on record furnishing the basis for the trial court to impose a fine of Rs.8,08,000/-. In the circumstances of the case, in my opinion, the fine imposed by the court is arbitrary, excessive and grossly disproportionate to the offence proved against the accused. PW.13 – the Medical Officer who examined and treated the victim has stated that a sum of Rs.1.5 lakhs is required for the corrective surgery. Apart from the said evidence, no other material is produced to show that the victim has either incurred the cost of Rs.8,08,000/- or that the said amount is required to meet the future medical treatment. More over, the trial court itself having reserved the right of the victim to approach the DLSA or KLSA for appropriate compensation, I am of the view that having regard to the nature of the injuries sustained by the victim, the period of treatment undergone by her as inpatient and the expenses required for the management and for correction of the permanent disfigurement as stated by PW.13 and also the financial capacity of the accused who is stated to be a Driver by profession working in a Travel Agency, it would be just and appropriate to impose a fine of Rs.5,00,000/- in addition to the sentence of imprisonment of ten years for the offence punishable under section 326A of Indian Penal Code.
13. For the foregoing reasons, I proceed to pass the following:-
ORDER (a) Criminal Appeal No.221 of 2017 is partly allowed.
(b) The conviction of the appellant – accused Sri.Dileep for the offence punishable under section 326A of Indian Penal Code is upheld.
(c) The sentence awarded by the trial court for the offence punishable under section 326A of Indian Penal Code is modified. The appellant – accused Sri.Dileep is sentenced to rigorous imprisonment for a period of ten years and a fine of Rs.5,00,000/- and in default of payment of fine amount, he shall undergo further imprisonment for a period of two years. On deposit or realization of the fine amount, the same shall be made over to the victim by way of compensation under section 357A of Cr.P.C.
(d) The conviction of the accused for the offence punishable under section 307 of Indian Penal Code and the consequent sentence is set-aside. The accused is acquitted of the charge under section 307 of Indian Penal Code.
(e) The accused shall serve the remaining period of sentence.
Sd/- JUDGE Bss.