IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.A. No. 938/2010 (C) BETWEEN KUMARA S/O SHYAMANNA AGED ABOUT 26 YEARS R/AT NEAR SHANI MAHATMA TEMPLE, HAROHALLI YESHWANTHPURA HOBLI BENGALURU NORTH TALUK (BY SRI. K. SHYAMSUNDAR, ADVOCATE) AND ... APPELLANT STATE OF KARNATAKA BY THAVAREKERE POLICE STATION MAGADI TALUK BENGALURU DISTRICT (BY SRI. HONNAPPA, HCGP) ... RESPONDENT THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 24.8.2010 PASSED BY THE I/C. I ADDL. DIST. & S.J. BANGALORE RURAL DISTRICT, BANGALORE IN S.C.NO.168/2006, CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 307 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The sole accused (appellant herein) has called in question the Judgment of Conviction and order on Sentence dated 24.08.2010 passed by the I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru, in SC No.168/2006 for the offence punishable under Section 307 of IPC, wherein the trial Court sentenced the accused to undergo Rigorous Imprisonment for 7 (Seven) years and to pay fine of Rs.45,000/-, in default, to undergo further imprisonment for 1 (One) year and out of fine amount, Rs.20,000/- each was ordered to be paid to PW.2 and PW.3, who are the victims in this case.
2. I have heard the arguments of the learned counsel for the appellant and the learned HCGP for the respondent-State. I have also carefully perused the oral and documentary evidence adduced and produced by the prosecution in support of its case.
3. Learned counsel for the appellant/accused has strenuously contended before this court that, the trial Court has not properly appreciated the oral and documentary evidence on record; Though the facts of the case do not constitute the offence under Section 307 of IPC, the trial Court morally convicted the accused for the said offence considering the nature of allegations made against him and the position of the victims. He further contended that, if the evidence on record is appreciated, the alleged offence may not fall under Section 307 or under Section 326 of IPC, but at the most, it may fall under Section 324 of IPC.
4. Learned Counsel for the appellant/accused, though not admitted that the accused has committed any offence, but without prejudice to the other persons, he made the above said submission. On the other hand, he pleaded for acquittal of the accused on re- appreciation of the oral and documentary evidence on record.
5. Per contra, the learned HCGP has submitted that, the nature of allegations and the facts of the case clearly disclose that, the accused knowing fully well that, he was possessing ‘alkaline’ containing acid solution, he splashed the same on the face of the victims, which caused injuries to their eyes, face and also it burnt their clothes. Therefore, looking to the materials available on record, the appellant/accused had the knowledge that, his intended act may cause damage to their lives. Therefore, the trial Court has rightly appreciated the material on record and convicted and sentenced the accused accordingly, which does not call for interference by this Court.
6. In the wake of the above said submissions, this Court has to re-examine the entire oral and documentary evidence on record in order to ascertain whether the Judgment of Conviction and Order on Sentence passed by the trial Court under Section 307 of IPC, is proper and correct.
7. Before adverting to the evidence on record, I feel it just and necessary to have the brief factual matrix of this case.
8. The case of the prosecution as could be seen from the charge sheet papers and the evidence on record are that, the complainant by name Narayanappa (CW.1) and his family members have been residing at Herohalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk. The complainant has got two children one is daughter- Savitha, studying in PUC and another is son-Somashekar, studying in 9th Standard respectively during that point of time. It is the further case of the prosecution that, the accused was often teasing the said girl-Savitha and pestering her to marry him. This was brought to the notice of her parents and in turn, the same was intimated to the brother of the accused. In spite of best advise of the brother of the accused and also warning in that regard by the complainant and his family members, the accused did not desist himself from doing such acts alleged against him.
9. In fact, he threatened the victim girl with dire consequences of killing her or to pour acid on her face, if she do not consent for marriage with him. He also threatened her that, if she do not agree to marry him, he would not allow her to marry any other person, and he would disfigure her face by splashing acid on her face.
10. In the above backdrop, it is alleged that, on 18.02.2006 at 8.45 am, when the victims viz., Savitha and Somashekar were proceeding to college/school, near Vidyashree High School situated at Anjananagar, Tavarekere Hobli, Bengaluru North Taluk, the appellant/accused suddenly came across them and splashed some solution like acid material on their face, as a result, the victims-Savitha and Somashekar suffered injuries to their eyes and suddenly they felt irritation and burning sensation; immediately they were taken to Ashraya Hospital at Sunkadakatte and there, they were suggested to take the victims to Narayana Netralalya Hospital and from there, they were shifted to MINTO hospital, where they were treated as inpatients.
11. On the basis of the said allegations, the respondent-police have laid charge sheet against the appellant/accused for the offence punishable under Section 307 of IPC. It is seen from the records that, during investigation of the case, the appellant/accused was arrested on 19.02.2006 and it appears he was released on bail 19.07.2006, and after passing of the judgment of conviction and sentence in the case on 24.08.2010, he was remanded to judicial custody in the said case on the same day. Thereafter, on filing of this appeal, on 10.01.2011 the accused was granted with bail by suspending the sentence and since then he has been enjoying bail. This shows that the, the accused was in judicial custody for more than nine months.
12. After securing the presence of the accused, the trial Court has framed charges against him for the offence under Section 307 of IPC. As he has not pleaded guilty, the trial was proceeded against him. The prosecution in order to bring home the guilt of the accused, examined as many as 13 witnesses and got marked 11 documents viz., Exs. P1 to P11 and also marked MOs. 1 to 4, viz., the clothes of the victim and also a plastic box, pant and shirt of the victim. The accused was also examined under Section 313 of Cr.PC. and he was also called upon to enter into defense evidence, if any. As he did not choose to do so, the trial Court has proceeded to hear the arguments and after appreciating the oral and documentary evidence on record, has convicted the accused for the offence punishable under Section 307 of IPC and sentenced him to under go seven years of Rigorous Imprisonment and also to pay fine of Rs.45,000/-, in default to undergo further imprisonment of one year, and out of the said fine amount, Rs.20,000/- was ordered to be paid to each of PW.2 and PW.3 as compensation.
13. The entire case of the prosecution revolves around the evidence of the victims and as well as the Doctor. The evidence of other witnesses, in my opinion, is not so relevant to be taken into consideration in order to consider whether the judgment of the trial Court is proper and correct. Of course, PW.1- Narayanappa is the father of the victims and he has deposed with regard to lodgment of the complaint and he was also present at a little distance, from the place of incident when the incident has taken place and he saw the accused splashing some liquid material like acid on the face of the victims and running away from the spot. Thereafter, the victims were shifted to hospital.
14. In the course of cross-examination, nothing worth has been elicited from PW.1, except suggesting that the victim-PW.2:Savitha has already married; she has not suffered any injuries and her eye-sight is very good etc. and those suggestions have been properly answered by PW.1.
15. PW.2 and PW.3 are the victims viz., Savitha and Somashekar. They have categorically deposed before the court about the incident and the conduct of the accused. About the incident, both victims have stated that, on that day, they were proceeding to School/College and when they reached near Vidyashree School, suddenly the accused came near them holding a plastic bag in his hand and poured some liquid on the face of the victims viz., PWs. 2 and 3. Immediately, they suffered irritation to their eyes, face and chest and also on other parts of the body and their clothes were also torn. Immediately, their father Narayanappa (PW.1) who was coming behind the victims also came and also one Rajanaa and Giriyappa also came to the spot and took them to the hospital. In the course of cross-examination, nothing worth has been from PWs. 1 & 2. On the other hand, it is suggested to them that, no serious injuries were caused to the victims and there were no marks on their face; they did not suffer any burn injuries as such. But, in the course of cross- examination of PWs. 1 & 2, in totality of the circumstances of the case, the accused splashing some liquid material on the victims, has not been disturbed. There was no reason for these two witnesses to falsely implicate the accused into crime. In this background it is made clear even in the course of cross-examination that, these two witnesses have suffered some injuries. But, according to the cross-examination, the injuries caused to victims were not severe and there are no burn injuries sustained by them and they are not fatal in nature. In the above said backdrop, the evidence of the Doctor play a dominant role in this particular case.
16. PW.5-Dr.Chandraprabha has deposed before the Court that, she has treated PW.2 and PW.3 and she has observed that, PW.3-Somashekar had suffered irritation in his eyes and his right eye had become reddish and he has not suffered any damage to his eyes and he has stated that, he has suffered only simple injuries and she has given her opinion as per Ex.P3. The Doctor (PW.5) has further stated that, she has also examined PW.2-Savitha and she has suffered simple injury to her eyes and other parts of the body and she has given her opinion as per Ex.P4. In Examination-in- Chief, the Doctor (PW.5) has never stated that any of the injuries are grievous in nature and they are fatal or if they are not treated in an usual manner, they were fatal to the victim. It is nowhere elicited in examination in chief of Doctor (PW.5) that, the injuries suffered by PW.2-Savitha were sufficient to cause death of a person in the ordinary course, if they are not treated immediately. Even the seriousness of the injuries have not been elicited in the course of examination-in-chief. The prosecutor also did not make any effort to elicit as to what type of acid was used for committing the said offence and the purpose of causing such injuries. The Doctor (PW.5) has categorically stated that, she has done Litmus Test to find-out as to which chemical solution was used for causing the injuries and she found that it is ‘Alkaline Chemical Solution’ used for causing the alleged injuries to the victims. Even in the course of her cross-examination, nothing worth has been elicited. On the other hand, it is elicited that there were no burn injuries caused on the eyes or any parts of the body of the victims and it is admitted that, if any solution of acid was used, there were chances of causing burn injuries.
17. Before adverting to appreciate the evidence of PW.5 (Doctor), it is just and necessary to bear-in- mind the evidence of PW.13-B.Mallesh, who was working as a Scientific Officer in the Forensic Science Laboratory, to whom the seized articles in this case were sent for examination. In his evidence, PW.13 has stated that, he received four sealed articles viz., one acid stained empty plastic bottle, one acid stained shirt, one acid stained pant of the victim-PW.3 and one acid stained petty-coat of the victim girl (PW-2); The said four items have been subjected to the 4 tests, which are, i) Litmus Test – This test responded positive for acid in articles No.1 to 4.
ii) Test for Hydrochloric Acid:- Silver nitrate reagent test. White precipitate developed insoluble in dil. HNO3. This indicate positive for Hydrochloric acid in Article Nos. 1, 2 & 3.
iii) Test for Sulphuric Acid. Barium Chloride Reagent Text. While precipitate developed insoluble in dil. HCL. This indicate positive for Sulphuric Acid in Article No.4.
iv) Test for nitric Acid. Brown Ring Test. No Brown Ring at the junction of two liquids. This indicates negative for nitric acid in Article Nos. 1 to 4. as to what are the contents of the acid used in the alleged crime.
After getting done the above tests, PW.13 was of the opinion that,-
i) Presence of hydrochloric acid was detected in the above stated Article Nos. 1 to 3.
ii) Presence of Concentrated Sulphuric Acid was detected in the above stated Article No.4.
PW.13-B. Mallesh, the Scientific Officer further given his opinion that, the above said acids are corrosive acids which are likely to damage the human skin and organs of the body; The severe damage to the human skin may affect the life of a person and accordingly he issued his report (Ex.P10.) 18. It is seen from the records that, in this particular case, PW.13 is not the person who has examined the victims. The Doctor who examined the victims has to depose as to whether the injuries sustained by them were sufficient to damage the human skin and also life of the person. But, such elucidation of evidence from the Doctor is not available in this case.
19. Using of the article ie., empty bottle which was said to have contained Hydrocloric Acid which was splashed on the victims, the Doctor-PW.5: Chandraprabha has stated that, it was ‘Alkaline’ in nature. She explained the reason as to why it is alkaline that, soon after examining the injuries, PW.5 washed the injured with salt solution and dipped litmus paper in the said solution, then that paper changed into light blue Colour. If there were traces of hydrochloric/sulphuric acid, the solution would have turned into red colour. To a suggestion put to her, PW.5 answered that, similar irritation or burning sensation will be there if cleaning agents like phenyl is spilled on the eyes of a person. “Acid” is a chemical, which is almost opposite to ‘Alkaline’ and the ‘Alkaline’ chemical does not contain the corrosive substance and normally, ‘Alkaline’ solution will be used for cleaning floor and vessels in the houses and commercial shops/organizations. Though they contain Acid, they were concentrated to dilute in the water for the purpose of using the same for cleaning the floor, walls or utensils etc. as such, that is not much concentrated chemical to cause so much of vital injury or damage to the skin or life of any person.
20. In the above backdrop, after the analysis of evidence of the Doctor (PW.5), the evidence of PWs.2 & 3 cannot be brushed aside. It is an undisputed fact that, the victims (PWs. 2 & 3) have actually suffered injuries due to the act of the accused splashing of some acid solution on the face of PWs. 2 & 3. Therefore, in that background, the Court has to examine whether the act of the accused attracts the provision of Section 307 of IPC or not.
21. In order to attract 307 of IPC, the act of the accused must be with such an intention or knowledge that, if he commits such a particular act, it may cause death and he would be guilty of murder. But, when the victim survives, in such a situation only he shall be punished under Section 307 of IPC. Therefore in this case, the intention and knowledge of the accused would play a dominant role. The intention of the accused is only to splash some diluted acid solution/material on the face of the victims. Therefore, certainly he had knowledge that, such material would cause the death of those persons or it would be in the ordinary course sufficient to cause death of victims. Therefore, neither the knowledge nor any intention can be imputed considering the nature of simple injuries sustained by the victims (PWs. 2 & 3). In order to attract Section 326 IPC, the act of voluntarily throwing or attempting to throw or splash acid, attracts Sections 326 and 326 (A) & (B) of IPC. In this case, voluntarily causing grievous hurt is not there, because the evidence of the Doctor shows that the victims have only suffered simple injuries. Actually it is not established before the trial Court that, the ‘Acid which contains corrosive substance has been splashed’. Because, it is the evidence of the Doctor (PW.5) that, the alleged solution/material used in the act was in the nature of ‘Alkaline’, which would be used for the purpose of cleaning floors, walls or utensils, and it is not actually acid.
22. In the above said facts and circumstances of the case, in my opinion, the alleged act of the accused may not fall under Section 307 or under Section 326 (A) & (B) of IPC. But it would only fall under Section 324 of IPC, which include causing of injury by using corrosive substance. The said proviso says that,-
“324. Voluntarily causing hurt by dangerous weapons or means,- 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 instrumental which, used as 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.”
23. Looking to the facts and circumstances, in this particular case, the substance used by the accused to commit the said act, is a heated substance containing the nature of corrosive substance for the purpose of causing aforesaid injuries to the victims. Therefore, the act of appellant/accused voluntarily causing simple hurts/injuries to the victims by using corrosive substances, is established by the prosecution beyond reasonable doubt. Therefore, the judgment of the trial Court in convicting the accused for the offence under Section 307 of IPC is not sustainable either in law or on facts and the same is liable to be set aside. However, the appellant/accused is liable to be convicted and sentenced for the offence under Section 324 of IPC. Hence, I proceed to pass the following,-
ORDER i) The appeal is partly allowed. The Judgment of Conviction and Order on Sentence passed by the trial Court for the offence punishable under Section 307 of IPC is hereby set aside. Consequently, the appellant/accused is acquitted of the offence under Section 307 of IPC. However, the appellant/accused is convicted for the offence punishable under Section 324 of IPC.
ii) It is stated that the appellant/accused has already undergone the punishment for more than nine months. Therefore, the appellant/accused is sentenced to undergo imprisonment for which he has already undergone. But, the appellant/accused is also sentenced to pay fine of Rs.1,00,000/- (Rupees One Lakh only), in default of payment of the said fine amount, he shall undergo Simple Imprisonment for a period of one year.
iii) If the said fine amount of Rs.1,00,000/- is deposited, each of PW.2 (Swetha) and PW.3 (Somashekar) shall be paid a sum of Rs.45,000/-
and the remaining Rs.10,000/- shall be confiscated to the State.
iv) The appellant/accused is also entitled for set-off under Section 428 of Cr.PC.
Learned counsel for the appellant/accused submits that, the said fine amount may be permitted to be deposited within one month from the date of receipt of a copy of this order.
Accordingly, one month’s time is granted to deposit the said amount before the trial Court, if not the trial Court can proceed to execute the orders.
KGR* Sd/-
JUDGE