Respondent(s)
For Appellant : Mr. Waquar Naiyer, Advocate
For Respondent/State : Mr. Amit Verma, Panel Lawyer.
SB: Hon'ble Shri Ramesh Sinha, Chief Justice
Judgment on Board
1. Though, today the present appeal is listed for hearing on I.A. No.01 of
2022, which is an application under Section 389 of the Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C.') for suspension of
sentence and grant of bail, but with the consent of learned counsel for
Digitally
signed by
PRAVEEN
KUMAR
SINHA the parties and considering the age of the appellant and his period of
Date:
2025.03.03
13:05:56
+0530 detention, the appeal is heard finally.
2. Accordingly, I.A. No. 01 of 2022 stands disposed of.
3. This criminal appeal filed by the appellant/accused under Section 374
of Cr.P.C. is directed against the impugned judgment of conviction and
order of sentence dated 29th October 2021 passed by learned
Sessions Judge, Kabirdham (Kawardha) (C.G.) in Sessions Trial
No.39 of 2020, whereby the appellant/accused has been convicted
and sentenced in the following manner :
CONVICTION SENTENCE
U/s 326-A of IPC Rigorous Imprisonment for 10 years with
fine of Rs.25,000/-, in default of
payment of fine, additional RI for 02
months.
Fine amount of Rs.25000/- to be paid to
the victim as an amount of
compensation.
4. Case of the prosecution, in brief, is that on 15.07.2020 at 8:00 p.m.,
Kanti Bai (PW2) was preparing food in her house situated at Naya
Talab Paar Kawardha. At that time, her grand-daughter Deepali Mallah
came and told that her father Mukesh alias Golu (PW1)
(victim/complainant) had gone to the house of accused and he told the
accused/appellant that daughter of the accused abuses both the
children of Mukesh every day, upon which, accused thrown acid on
Mukesh which was kept in a liquor bottle, due to which, Mukesh
sustained acid burn injuries. Purain Yadav, Rajendra Yadav, Malti Soni
and Guddu Yadav were also standing in front of house of accused.
Mukesh was taken to the hospital for treatment. On the report of Kanti
Bai (PW2), FIR was registered against the accused/appellant. Victim
Mukesh was sent for medical examination. During course of
investigation, an inspection of the crime scene was conducted, and a
site map (Ex.P-3) was prepared based on the statement of Kanti Bai
(PW2). On 16.07.2020, appellant-accused was interrogated and his
memorandum statement was recorded in Ex.P-2. At the instance of
appellant, one empty bottle of liquor was seized vide seizure memo
(Ex.P-4). Appellant was taken into custody. Statements of witnesses
were recorded. Article seized from the possession of the appellant was
sent for its chemical examination to the State Forensic Science
Laboratory, Raipur and report of the same has been received.
5. After completion of investigation, charge-sheet was filed against the
accused/appellant under Section 326-A of IPC before the Court of
Chief Judicial Magistrate, Kawardha, District - Kabirdham, wherefrom
the case was committed to the Court of Sessions Judge, Kabirdham,
who has conduced the trial. Learned trial Court framed charges
against the appellant under Section 326-A of IPC which was denied by
the appellant and he prayed for trial of his case.
6. Prosecution in order to prove its case examined as many as 9
witnesses and exhibited 13 documents i.e. Ex. P-1 to P-13. Statement
of accused person was also recorded under Section 313 of Cr.P.C. in
which he denied all incriminating evidence appearing against him,
pleaded innocence and false implication and in his defence, he has
also examined one witness as DW-1.
7. The learned Sessions Judge, Kawardha after appreciating oral and
documentary evidence available on record vide impugned judgment
dated 29th October 2021 convicted and sentenced the appellant as
mentioned in paragraph -3 of this order. Being aggrieved by the said
judgment, the instant appeal under Section 374 of CrPC has been
preferred by the appellant.
8. Learned counsel appearing for the appellant submits that the appellant
is a Goldsmith by profession and there was previous fight between
daughters of the complainant and appellant and daughter of the
appellant was not of sound mind and on the date of incident, again a
quarrel took place between daughter of the complainant and appellant
and the complainant/victim had intervened the quarrel. There was
scuffle between the two and acid which is used for cleaning and
melting of gold has been inadvertently fallen on the body of
complainant, due to which, it is stated, complainant suffered acid burn
injuries on his person and he also lost his one of the eyes in the acid
attack. He submits that even if the case of prosecution is taken on its
face value, the case would be covered under Section 335 of IPC as
the incident occurred on a grave and sudden provocation. There was
no premeditated mind to cause grievous hurt to the victim by use of
acid. The appellant has served out 4 years 7 months and 9 days of jail
sentence and offence under Section 335 of IPC is punishable for term
which may extend to 4 years or with a fine which may extend to
Rs.2000/- or with both. It is stated that the appellant as on date is aged
about 75 years and he is in jail since 16.07.2020, hence, the conviction
of the appellant be altered to under Section 335 of IPC in place of
Section 326-A of IPC as the grievous hurt was caused on account of
grave and sudden provocation without any premeditated mind.
9. Learned State counsel opposes the submissions advanced by learned
counsel for the appellant and submits that there is no illegality and
infirmity committed by the learned trial Court in convicting and
sentencing the appellant for the offence as alleged against him as the
victim has received acid burn injuries and he has also lost his one of
the eyes.
10.I have heard learned counsel for the parties and perused the record of
the trial Court including the impugned judgment.
11.Section 326-A of IPC deals with voluntarily causing grievous hurt by
use of acid etc. It was enacted and inserted by the Act 13 of 2013
w.r.e.f. 03.02.2013. It was introduced to specifically address the
heinous crime of throwing acid or any corrosive substance with intent
to cause permanent or partial damage or deformity to, or burns or
maims or disfigure or disables any part or parts of the body of a
person, whereas, Section 335 of IPC provides for voluntarily causing
grievous hurt on provocation which reads as under:-
"335. Voluntarily causing grievous hurt on
provocation- Whoever [voluntarily] causes
grievous hurt on grave and sudden
provocation, if he neither intends nor knows
himself to be likely to cause grievous hurt to
any person other than the person who gave
the provocation, shall be punished with
imprisonment of either description for a term
which may extend to four years, or with fine
which may extend to two thousand rupees,or
with both".
12.On close scrutiny of the evidence of complainant Mukesh alias Golu
(PW1) it appears that there was a previous altercation between the
parties on the issue of hurling abuses on daughter of complainant by
the daughter of appellant/accused who was not keeping sound mind.
On the date of incident, this altercation again took place which led to
sudden and grave provocation and due to this sudden and grave
provocation, appellant/accused who is a Goldsmith by profession
thrown acid on the complainant which was kept in the house, causing
grievous injuries to him.
13.Considering the entire facts and circumstances of the case which
emerges out from the evidence available on record, particularly the
evidence of victim Mukesh alias Golu (PW1), the circumstances in
which the incident is alleged to have happened due to sudden and
grave provocation and further considering the age of the appellant to
be 75 years as on date, as in his statement recorded under Section
313 of Cr.P.C. his age has been shown to be 68 years, he is in jail
since 16.07.2020, I am of the view that it is a fit case where the
conviction of the appellant can be altered from Section 326-A of IPC to
Section 335 of IPC.
14.Accordingly, conviction of the appellant by the trial Court under Section
326-A of IPC is altered to under Section 335 of IPC and he is
sentenced to undergo RI for 4 years. Since the appellant has already
undergone more than 4 years of jail sentence he is directed to be
released forthwith if not required to be detained in connection with any
other case.
15.Further, as the fact relating to acid attack on the victim was found
proved and as a result of acid attack, apart from sustaining other
injuries, the victim has lost his one eye forever and as learned counsel
for the appellant has conceded before this Court that the fine amount
of Rs.25,000/- imposed by the trial Court may be paid as
compensation to the victim because the offence under which the
appellant has now been convicted by this Court i.e. under Section 335
of IPC, fine which can be imposed may extend to two thousand
rupees, I am of the view that victim is entitled for compensation in
terms of provision of Section 357 of Cr.P.C. which specifically provides
for compensation to the victims of acid attack. Accordingly, the
accused is directed to pay compensation of Rs.25,000/- to the victim
within a period of one month from today, before the learned trial Court
concerned, in default, he shall suffer rigorous imprisonment of 6
months.
16.The amount of compensation so deposited by the appellant/accused
before the trial Court shall be paid to the victim/complainant Mukesh
alias Golu on moving appropriate application on his behalf, upon
proper identification and verification.
17.The appeal is accordingly allowed in part to the extent and in the
manner indicated above.
18.Let a copy of this judgment and the original record be transmitted to
the trial Court concerned forthwith for necessary information and
compliance. Sd/-
Sd/-
(Ramesh Sinha)
Chief Justice
Praveen
