Delhi High Court
Baljeet Kumar vs State on 6 August, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Judgment reserved on: 31.07.2009
Judgment delivered on: 06.08.2009
+ CRL. APPEAL 172/2008
BALJEET KUMAR ...Appellant
Through : Mr.Rakesh Malhotra, Advocate.
versus
STATE (GOVT. OF NCT OF DELHI) ...Respondent
Through : Mr.Pawan Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether judgment should be reported in Digest? Yes
: PRADEEP NANDRAJOG, J.
1. Briefly stated, the case of the prosecution is that
the appellant Baljeet Kumar was residing in a rented room at
H.No.G-28 Harkesh Nagar on 18.12.2002. The deceased
Murshid Alam along with his relative Ajmer Alam also resided
in the same building, i.e. G-28 Harkesh Nagar, in a room taken
on rent opposite the room of Baljeet Kumar. A month prior to
18.2.2002, an altercation had taken place between the
appellant Baljeet Kumar and the deceased Murshid Alam,
when Murshid Alam objected to Baljeet Kumar playing music at
a very high volume. At that time the matter was settled with
the intervention of neighbours; however, since then, accused
Baljeet was nurturing a grouse against the deceased and on a
few occasions had threatened the deceased that he would
take revenge. That on 18.2.2002, Baljeet Kumar called
Murshid Alam to his room and upon Murshid Alam entering his
room he ran away after pouring acid on him. Due to the acid
burns, Murshid Alam succumbed to the injuries on 22.2.2002.
2. The process of law was set into motion, when
somebody informed the Police Control Room at number 100
about Baljeet having poured acid on Murshid Alam. A PCR van
immediately reached the spot i.e. G-28 Harkesh Nagar and
removed the injured to Safdarjung Hospital. The Police Control
Room forwarded the information to the Police Post at Okhla
Industrial Area Phase II, since the place of occurrence fell
within the jurisdiction of PS Okhla. At the said Police Post, DD
No.28, Ex.PW-10/A, was recorded by the duty officer noting
that a person named Baljeet Singh had poured acid on a
person named Murshid Alam at house No.G-28 Harkesh Nagar.
A copy of the DD entry was handed over to SI Satish Kumar
PW-13 for investigation. Accompanied by Const.Sawata Kumar
PW-10, SI Satish Kumar went to Safdarjung Hospital as the PCR
van informed over the wireless that the injured was being
removed to Safdarjung Hospital. At the hospital, SI Satish
Kumar learnt that the injured Murshid Alam was admitted in
the casualty. SI Satish Kumar moved an application Ex.PW-
13/A seeking the permission of the Chief Medical Officer to
record the statement of the injured. On finding the patient fit
for making a statement, the concerned doctor made
endorsement Ex.PW-13/B on the said application at 7:50 PM to
the effect that the statement of Murshid Alam could be
recorded.
3. SI Satish Kumar PW-13 recorded the statement
Ex.PW-13/C of Murshid Alam as per which he stated that he
was a native of village Sithanabad, Laloo Tola, PS Simri,
Badhtiyarpur, District Sahrana Vihar, and for the past few
years was residing at G-28, Harkesh Nagar, in which house
Baljeet was residing opposite to his room and that Baljeet
Kumar used to play deck at a very high volume. A month back
he had objected to Baljeet playing deck at a very high volume
and on this an altercation had taken place between the two.
With the intervention of other people, the issue was settled but
Baljeet Kumar nurtured a grudge against him. Today i.e. on
18.2.2002, at around 5:00 PM Baljeet called him to his room
and when he was at the door of the room of Baljeet, Baljeet
poured acid on him as a result his face, chest and arms got
burnt.
4. SI Satish Kumar made an endorsement Ex.PW-13/D
under the statement Ex.PW-13/C and sent the same through
Const. Sawata PW-10 to police station Okhla Industrial Area
Phase-II where HC Ranjit Singh PW-5 registered FIR No. 87/02,
Ex.PW-5/A, for the offence punishable under Section 326 IPC.
5. After collecting the MLC Ex.PW-9/A of Murshid which
recorded that the patient had received grievous injuries in the
nature of 20% chemical burns, SI Satish Kumar left for the
place of offence. There he met Ajmer Alam, who claimed to be
an eye-witness of the incident. At the pointing out of Ajmer, SI
Satish Kumar prepared a rough site plan Ex.PW-13/E of the
place of incident; recording therein the room where Murshid
resided, the room opposite the said room where a container
containing acid and some acid burnt clothes were found and
the passage in between the two rooms where burnt clothes
were lying. A private photographer, Laxman PW-4, was
summoned who took five photographs Ex.PW-4/1 to Ex.PW-4/5;
negatives whereof are Ex.PW-4/6 collectively.
6. SI Satish Kumar seized a container Ex.P-1
containing acid lying at the spot, as recorded in the seizure
memo Ex.PW-3/C. He seized a towel (gamcha) Ex.P-2, a T-shirt
Ex.P-3 and a jacket Ex.P-4, which were in a partly burnt
condition, from the room of the accused, as recorded in the
seizure memo Ex.PW-3/B. Burnt and cut clothes, Ex.P-5 to
Ex.P-9, stated to have been worn by the deceased when the
acid was thrown on him were seized as recorded in the seizure
memo Ex.PW-3/A.
7. SI Satish Kumar recorded the statement of Ajmer
Alam under Section 161 Cr.P.C. He also recorded the
statement of one Virender PW-6 under Section 161 Cr.P.C. On
returning to the police station he thought it prudent to add the
offence punishable under Section 307 IPC in the FIR. Efforts
were made to apprehend Baljeet on the same day, which
failed.
8. On 22.2.2002, at around 10.00 PM, Murshid Alam
succumbed to his injuries and information regarding the same
was conveyed to the police station where the duty constable
noted said fact vide DD No.41, Ex.PW-13/F. Since Mushid Alam
had died, the offence punishable under Section 302 IPC was
added in the FIR. SI Satish Kumar proceeded to Safdarjung
Hospital and seized the dead body of Murshid Alam and
prepared the inquest papers, Ex.PW-13/G.
9. Dr.B.Swain PW-7, conducted the post-mortem on
the dead body and gave his observations/report in the post-
mortem report Ex.PW-7/A. He noted that the total area of the
body surface burnt is about 30%. He opined that the cause of
death is septicemia following ante-mortem burn injuries
possible by corrosive substance.
10. SI Satish Kumar continued to search for the
appellant, who remained untraceable till 25.6.2002, when
Arvind Kumar, a brother of the appellant Baljeet Kumar
produced him before SI Satish Kumar. Appellant was arrested
as recorded in the arrest memo Ex.PW-13/L on 25.6.2002. He
interrogated the appellant and recorded his disclosure
statement Ex.PW-13/N, wherein, inter-alia, he stated that he
could get recovered the T-shirt worn by him at the time of the
incident from his house. As recorded in the seizure memo
Ex.PW-8/A a T-shirt which was burnt at places was recovered
in the presence of HC Satya Prakash PW-8 and Const.Bhimesh
PW-12; the recovery being from the house of the brother-in-
law of the appellant which was pointed out by the appellant in
Gauriganj, Sultanpur.
11. At the time of his arrest, it was noted by SI Satish
Kumar that the appellant was having burn marks on his face
and hand. Therefore, the appellant was taken to All India
Institute of Medical Sciences for being medically examined. At
the hospital, after being medically examined, Dr.Varun Dikshit
prepared the MLC Ex.PW-13/P which records:-
"Keloid on the right hand dorsal surface, 6 X 0.8
cm. Similar keloid on the right mandibular margin 5
X 0.3 cm. Multiple similar scars over the upper limb
on the arm, forearm and wrist on right side, size
ranging from 0.5 X 0.5 to 1 X 1 cm. similar multiple
scars on the left forearm and dorsal surface of left
hand.
Opinion :
1. Scars are old in duration.
2. Reason for the scar cannot be given as the
duration of the injury is old. Possibility of acid
burn cannot be ruled out."
12. On 6.9.2002 SI Mahesh Kumar PW-11 prepared the
site plan to scale Ex.PW-11/A of the place of occurrence i.e. G-
28 Harkesh Nagar, New Delhi.
13. The investigating officer sent the clothes lifted from
the room of the appellant as recorded in the memo Ex.PW-3/B;
the burnt and cut clothes lifted from outside the room of
Murshid as entered in the memo Ex.PW-3/A; the container
Ex.P-1 as also the T-shirt got recovered by the appellant from
the house of his brother-in-law to the forensic science
laboratory. The report Ex.PW-13/Q was sent by the FSL
laboratory opining that on chemical examination it was
revealed that the clothes seized from the room of the
appellant, the T-shirt recovered at the instance of the
appellant, burnt clothes lifted from outside the room of the
deceased and the plastic container tested positive for the
presence of Sulphuric Acid.
14. The appellant was sent to trial. Needless to state,
the prosecution relied upon the statement Ex.PW-13/C of the
deceased as the dying declaration of the deceased; the
testimony of SI Satish Kumar to prove the dying declaration;
eye-witness account by Ajmer Alam PW-3 and one Virender
PW-6 who also claimed to be an eye-witness besides the
recoveries/seizures effected and the FSL report pertaining
thereto and the MLC of the appellant which showed that a few
days prior to his being medically examined he had suffered
acid burns.
15. In all 14 witnesses were examined. We need not
note the testimony of all the witnesses save and except the
testimony of Ajmer Alam PW-3, Virender PW-6 and the
testimony of SI Satish Kumar PW-13. But before that, we may
note that the MLC Ex.PW-13/P of the appellant prepared by
Dr.Varun Dikshit was proved by Dr.B.L.Chaudhary, PW-14 who
deposed that he was familiar with the handwriting of Dr.Varun
Dikshit and that the MLC Ex.PW-13/P was in the handwriting of
Dr.Varun Dikshit. The MLC Ex.PW-9/A of the deceased
prepared by Dr.Manish P.Zade was proved by Shri Narender
Pal Singh PW-9 a record clerk at Safdarjung Hospital who
deposed that he was familiar with the handwriting of
Dr.Manish P. Zade and that the writing on the MLC was in the
hand of Dr.Manish P.Zade. The post-mortem report Ex.PW-7/A
was proved by the author of the report i.e. Dr.B.Swain PW-7.
16. Ajmer Alam PW-3 deposed that he was residing with
the deceased Murshid Alam at House No.G-28, Harkesh Nagar
for the last 4-5 years. Accused Baljeet Singh resided in a room
opposite to their room. A month prior to 18.2.2002, an
altercation had taken place between Baljeet Singh and Murshid
Alam when Murshid Alam had objected to the loud music being
played by Baljeet Singh. At that time, the matter was settled
with the interference of other people. But since then, the
accused started nurturing grudge against Murshid Alam and
even threatened Murshid on a number of occasions. On
18.2.2002, at about 4.45-5.00 PM when Murshid and he were
present in the house, Baljeet called Murshid to his house.
When Murshid reached the door of house of Baljeet, Baljeet
threw acid on Murshid from a container. Baljeet immediately
rushed from the room towards the gali. He i.e. Ajmer tried to
apprehend Baljeet, who managed to escape. He returned to
the spot, where other neighbours also gathered and with the
help of scissors removed the burnt portions of clothes of
Murshid. In the meantime somebody informed the PCR which
arrived and took Murshid to Safdarjung Hospital. He i.e. Ajmer
informed Hasib brother of Murshid and other relatives of
Murshid on telephone and thereafter returned to the spot at
about 8.30 PM. That he narrated the said facts to the police
and pointed out the place of occurrence. That the container
Ex.P-1 and the burnt clothes as recorded in the seizure memo
Ex.PW-3/B were seized from the room of the accused and that
he signed the seizure memo Ex.PW-3/B as a witness. He
further deposed that the pieces of burnt cloth lifted from
outside the room of Murshid as per memo Ex.PW-3/A were
lifted in his presence and that he had signed the seizure memo
Ex.PW-3/A as a witness.
17. On being cross-examined, Ajmer stated that the
police reached the spot at about 5/5.15 PM. He admitted that
Murshid was his distant brother. That his statement was
recorded in his room at about 8.30 PM.
18. Virender PW-6 deposed that on 18.2.2002, when he
was in the street abutting H.No. G-28 Harkesh Nagar, he heard
Murshid Alam crying „bachao bachao‟. He saw Murshid Alam
having acid burns on his face and his clothes were burnt. He
saw Ajmer Alam remove the clothes of Murshid with the help
of scissors and that he also went and helped Ajmer. He further
deposed that he saw Baljeet Singh running away from that
place saying „maine Murshid Alam ka kaam tamam kar diya
hai‟. The police arrived and removed the injured to the
hospital.
19. On being cross-examined he stated that he runs a
"Parchoon" shop at G-28 Harkesh Nagar. Denying the
suggestion that his shop remains closed from 2.30 PM to 5.30
PM, he stated that it remains closed from 12:00 Noon to 2.00
PM and that at the time of the incident he was returning from
the street where he had gone to make some purchases from a
salesman.
20. SI Satish Kumar PW-13, deposed that on 18.2.2002,
at about 5.50 PM, he was handed over copy of DD No.28 for
investigation. Accompanied by Const.Sawata Kumar PW-10,
he went to Safdarjung hospital and found Murshid admitted at
the hospital. Vide Ex.PW-13/A he sought permission from the
doctor to record the statement of Murshid. Vide endorsement
Ex.PW-13/B, the doctor granted him permission to record the
statement of Murshid. He recorded the statement Ex.PW-13/C
of Murshid and made his endorsement Ex.PW-13/D thereunder.
He sent Const.Sawata Kumar for registration of an FIR. He
proceeded to the place where the crime was committed and
met Ajmer Alam whose statement was recorded by him and on
the pointing out of Ajmer Alam he prepared the rough site plan
Ex.PW-13/E. He called a private photographer who took the
photographs Ex.PW-4/1 to Ex.PW-4/5. At the spot he saw a
container Ex.P-1 which he seized as recorded in the memo
Ex.PW-3/C. From the room of the accused he seized a
gamchha Ex.P-2, a T-shirt Ex.P-3 and a jacket Ex.P-4 which
were burnt and recorded said fact in the seizure memo Ex.PW-
3/B. Burnt sweater Ex.P-5, shirt Ex.P-6, pant Ex.P-7, vest Ex.P-
8 and half sleeve sweater Ex.P-9 were seized from outside the
room as recorded in the seizure memo Ex.PW-3/A. That
Murshid Alam died on 22.2.2002, which information was
received at the police station as recorded in DD No.41. He got
the inquest proceedings conducted vide documents Ex.PW-
13/G. The appellant was apprehended on 25.6.2002 when he
was produced at the police station by his brother Arvind
Kumar. The appellant made a disclosure statement Ex.PW-
13/N which was recorded by him as per which the appellant
told him that the T-shirt which he was wearing when the crime
was committed could be got recovered by him. The appellant
thereafter got recovered the T-shirt Ex.P-1 which was seized as
recorded in the memo Ex.PW-8/A.
21. We may note at this stage that two exhibits have
been assigned the same exhibit mark. The plastic can has
been exhibited as P-1. The T-shirt got recovered by the
appellant has also been exhibited as P-1.
22. Holding that the evidence on record establish that
the deceased, in full senses, made the statement Ex.PW-13/C,
which pertained to the cause of the death of the deceased,
had to be treated as a dying declaration, the learned Trial
Judge has held that the first piece of incriminating evidence
against the appellant is the said dying declaration. Holding
that the testimony of Ajmer Alam PW-3 inspired confidence,
the learned Trial Judge has held that the dying declaration of
the deceased was corroborated by ocular evidence. With
reference to the testimony of Virender PW-6, the learned Trial
Judge has held that the same establishes the presence of the
appellant at the place where the crime was committed and at
the time of the crime and his conduct of running away also
showed his guilt. With reference to the post-mortem report
which records that 30% of the body surface area was burnt
and that the cause of death was septicemia due to
complications created as a result of acid burns, with reference
to the motive of past enmity, learned Trial Judge had
concluded by holding that the acts of the appellant were the
result of his intention to kill the deceased. The learned Trial
Judge has also used, as an incriminating circumstance, the
evidence that the MLC Ex.PW-13/P of the appellant prepared
on 26.6.2002 after the appellant was apprehended and got
examined at AIIMS shows acid scar marks on his upper limbs
and the right hand. Thus, the conclusion drawn is that the
appellant is guilty of having murdered Murshid Alam.
23. At the hearing of the appeal, learned counsel for
the appellant urged:-
(a) That there was no proof of the deceased being fit
for making a statement and that the doctor who purportedly
made the endorsement Ex.PW-13/B on the application Ex.PW-
13/A moved by SI Satish Kumar was not examined. Thus,
counsel urged that the alleged dying declaration i.e. Ex.PW-
13/C has to be ignored.
(b) Labeling Ajmer Alam as an interested witness,
learned counsel urged that no credence can be given to the
testimony of Ajmer Alam.
(c) Questioning the presence of Virender at the spot,
learned counsel urged that though Virender also resided in a
room in the same building where the offence was committed,
he sold merchandise from a retail shop and was thus expected
to be at his shop. Thus, counsel urged that Virender is a
planted witness.
(d) That sulphuric acid is highly corrosive and it is just
not possible to store the same in a plastic container and since
the prosecution claims that a plastic can containing sulphuric
acid was recovered from a room belonging to the appellant,
the said fact is nullified behind the chemistry of sulphuric acid.
(e) Counsel submitted that the burn injuries noted on
the hands and the forearms of the appellant were keloids
which was possible due to many causes; one of them being
acid burns. Thus, counsel urged that the MLC Ex.PW-13/P did
not conclusively established that the appellant suffered burn
injuries as a result of sulphuric acid.
(f) Counsel urged that assuming that the appellant
threw the acid on the deceased, the fact of the matter remains
that the deceased died after 4 days of the incident and the
cause of death was septicemia following ante-mortem burn
injuries. Referring to the MLC of the deceased wherein it is
recorded that 20% body surface area was burnt due to acid,
learned counsel urged that the twin effect of the said two facts
i.e. death being the result of septicemia after 4 days and body
surface area being burnt was 20%, it cannot be said that the
intention of the appellant was to cause the death of the
deceased or that the appellant had knowledge that his act or
the resultant injury would in all probability cause death. Thus,
counsel urged that it was at best a case of making out an
offence punishable under Section 304 Part II IPC.
24. It is no doubt true that the doctor who has made
the endorsement Ex.PW-13/B on the application Ex.PW-13/A
moved by SI Satish Kumar for recording the statement of
Murshid Alam who was admitted at Safdarjung Hospital on
18.12.2002 has not been examined and thus the author of the
endorsement has not proved the same. Thus, we are of the
opinion that under the circumstances it may not be prudent to
rely upon the statement Ex.PW-13/C of the deceased by
treating it to be the dying declaration of the deceased.
25. Except for urging that, being a distant cousin of the
deceased, Ajmer Alam was an interested witness, learned
counsel for the appellant could not point out anything
worthwhile with reference to the cross examination of Ajmer
Alam, wherefrom his credibility can be impinged. We note that
Ajmer Alam has withstood the test of credibility. A relative by
said fact alone does not become an interested witness. An
interested witness is a witness who has a motive to falsely
implicate the accused. No such motive has been alleged
against Ajmer Alam. None has been brought out. Thus, Ajmer
Alam, whose presence at the spot is natural, has to be
accepted.
26. The third submission pertaining to the testimony of
Virender is an utterly gibberish submission and has been urged
without appreciating the testimony of Virender. The argument
of learned counsel for the appellant is premised on the
assumption that the shop of Virender is somewhere else and
his residence is somewhere else. The argument ignores the
fact that as per Virender he was a resident of house No.G-28,
Harkesh Nagar. He deposed that he was running a retail shop
at house No.G-28, Harkesh Nagar. Thus, the presence of
Virender at the spot is natural who claimed to have returned to
his shop after making purchases from the market and as he
returned he saw the appellant running away saying „maine
Murshid Alam ka kaam tamam kar diya hai‟.
27. The testimony of Virender PW-6 is admissible and
relevant by virtue of Section 6 of the Evidence Act. It shows
the contemporaneous acts and utterances of the appellant
who was seen fleeing from the place of occurrence soon after
the crime was committed. Needless to state it is conduct of
guilt if seen running away from the scene of the crime and
uttering words linked to the crime. In fact the utterances of
the appellant which were heard by PW-6 are nothing but an
extra judicial confession made by the appellant, admitting his
guilt in the crime.
28. We thus hold that the twin testimony of PW-3 and
PW-6 inspires confidence and standing alone as also in
conjunction with each other, establish the commission of the
crime by the appellant.
29. That apart, the evidence of clothes seized from the
room of the appellant as also the T-shirt recovered after he
was arrested being proved to be having burn marks
occasioned by an acid being sulphuric acid shows that the
appellant had the said acid with him. The burnt clothes of the
deceased also had sulphuric acid thereon. The said recoveries
also are a link in the chain to establish the culpability of the
appellant. The further link in the chain of circumstances is the
MLC Ex.PW-13/P of the appellant which establishes that when
he was medically examined on 26.6.2002, his right hand and
forearms were having old scar wounds; being the result of acid
falling on his hands and forearms.
30. The plea that sulphuric acid is highly corrosive and
cannot be stored in a plastic container requiring an inference
to be drawn that the can Ex.P-1 could not be the one in which
sulphuric acid was stored has to be rejected for the reason
polymethyl and polyethylene cans of high resistance to acidic
and caustic substances have been developed and are available
in the market. The can Ex.P-1, could be one such can. It was
for the appellant to have led evidence with reference to the
can and brought out the chemical composition of the material
of the can and upon showing that the material of the can was
such that it would have been eaten away by acid, could such a
submission have been urged.
31. No doubt, keloids can be the result of burn injuries
occasioned by more than one cause, but burn injuries resulting
from acid falling being one of the cause of keloids, cannot be
ignored in the instant case for the reason the appellant has not
explained as to how keloids were found on his hands and
forearms. This fact was in the special knowledge of the
appellant. The police or the prosecution could never reach out
to the same. In the absence of any explanation from the
appellant, an adverse inference has to be drawn against him.
32. Thus, we concur with the view taken by the learned
Trial Judge that the evidence establishes that due to past
enmity, the appellant intentionally poured sulphuric acid on
Murshid Alam.
33. Law presumes that a man intends the
consequences of his acts. At a murder trial the problem
relatable to intention and the linkage with the act is that
sometimes it becomes difficult to find out the real intention
which may be to simply injure the victim or it may be to cause
a grievous injury to the victim or to cause the death of the
victim.
34. Commonsense guides us that the nature of the
assault, the attendant circumstances, the nature of the
weapon of offence used and the ferocity of the attack would
guide to determine the intention of the offender.
Contemporaneous utterances of the offender would also be
relevant.
35. This takes us to the last submission urged that the
death being the result of septicemia after 4 days and 20% of
the body surface area being burnt, it cannot be said that the
intention of the appellant was to cause the death of the
deceased or that the appellant had knowledge that his act or
the resultant injury would in all probability cause death. The
submission needs to be rejected in light of the observations in
the decision reported as JT 2001 (9) SC 282 Patel Hiralal
Joitaram Vs. State of Gujarat. In said case the victim was set
on fire after some corrosive liquid was poured on her. She
lived on for quite a few days and died due to septicemia. In
para 35 to 38 of the decision it was opined as under.
"35. Section 299 IPC defines "culpable homicide" as
"whoever causes death by doing an act with the
intention of causing death, or with the intention of
causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by
such act, to cause death, commits the offence of
culpable homicide."
36. Explanation 2 to Section 299 has a material
bearing on the said contention and hence that is
extracted below:
"Explanation 2 - Where death is caused by
bodily injury, the person who causes such
bodily injury shall be deemed to have caused
the death, although by resorting to proper
remedies and skilful treatment the death might
have been prevented."
37. Section 300 IPC carves out two segments, one
is culpable homicide amounting to murder and the
second segment consists of culpable homicide not
amounting to murder. Four clauses enumerated in
the section are enveloped in the first segment.
What is set apart for the second segment is
compendiously described as "except in the cases
hereinafter excepted" from out of the first segment.
For the purpose of this case we deem it necessary
to quote only the second clause in Section 300 IPC.
"2ndly - If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused."
38. In the present case, appellant did not even
make an effort to bring the case within any of the
four exceptions enumerated in Section 300. Hence
the only question to be answered is whether he did
the act with the intention of causing such bodily
injury as he knew "to be likely to cause death of the
deceased." It is inconceivable that appellant would
not have known that setting a human being ablaze
after soaking her clothes with inflammable liquid
would cause her death as the type of burns
resulting therefrom would at least be "likely" to
cause her death (if not they are sufficient in the
ordinary course of nature to cause her death). The
fact that she died only after a fortnight of sustaining
those burn injuries, cannot evacuate the act out of
the contours of the "2ndly" clause of Section 300
IPC. There was a little abatement of the ferocity of
the flames which engulfed her as she, in the
instinctive human thirst of getting extricated from
the gobbling tentacles of the fire, succeeded in
tracing out of a water-flow. Such a reflex action
performed by her had mitigated the conflagration of
the flames but did not save her from the fatality of
the calamity. Hence, the interval of fourteen days
between the attack and her death is not a cause for
mitigation of the offence perpetuated by the
offender. We are, therefore, not impressed by the
alternative argument advanced by the learned
senior counsel for the appellant."
36. It becomes pertinent to note here, that while urging
that, only 20% of the body surface of the deceased was burnt,
the counsel has relied upon the MLC and has completely
ignored the post-mortem report which categorically records
that the total area of body surface burnt is about 30%. A Post-
mortem report records the injuries on a body after an in-depth
and incisive examination of the same and is expected to be
more accurate than an MLC which merely records the
superficial injuries which are evidenced by a quick and cursory
examination of the body of the injured. There is therefore, no
doubt, that 30% and not 20% of the body was burnt.
37. A Division Bench of this Court of which one of us
viz. Pradeep Nandrajog, J. was a member of had an opportunity
to consider medical jurisprudence pertaining to acid burns. A
decision of the Supreme Court reported as AIR 1974 SC 2328
Sudershan Kumar vs. State of Delhi was noted. The said
decision of the Division Bench dated 11.2.2009 in
Crl.A.No.37/2005 Mohd. Kamal Hussain Vs. State (GNCT of
Delhi) noted that as against burn injuries due to fire, acid burn
injuries deteriorate with the passage of time and death takes
place after five or six days or even longer. Medical
jurisprudence was noted that in case of burns by acid, if body
area affected is above 30%, the same is usually fatal. In paras
40 to 42 of the said decision, it was observed as under:-
"40. The issue where the victim is burnt and the
burns cover between 30% to 35% of the body and the
death occurs after many days due to infection
spreading in the vital organ of the victim has troubled
the Courts evidenced by certain decisions holding that
by its very nature of the act, burning a victim is an
imminently dangerous act and in the least a very high
degree of knowledge can be attributed to the offender
of knowing the consequences of his act. Certain
decisions have applied the principle of causa causan
to hold that if some other event intervenes between
the principal act and the resultant effect the said
principle is not applicable and thus have reduced the
gravity of the offence. But, said decisions relate to
burn by fire.
41. In the case of acid burns, the jurisprudence is a
little different. In the decision reported as AIR 1974 SC
2328 Sudershan Kumar vs. State of Delhi Modi's
Medical Jurisprudence and Toxicology 17th Edn. was
referred to wherein it was opined that: "The
involvement of one-third to one-half of the superficial
area of the body is likely to end fatally........ in
suppurative cases, death may occur after five or six or
even longer". With reference to Taylor's Principles and
Practice of Medical Jurisprudence 12th Edn. Vol.I it was
noted that in cases of acid burns: "The chief danger to
life is the occurrence of sepsis in the burned areas."
Accordingly, where the victim who had suffered 35%
burns of the body due to acid and death resulted, it
was held to be a case attracting Section 302 IPC.
42. The submission of the learned counsel for the
appellant that afore-noted decision is distinguishable
because in said case 35% of the body was burnt with
acid and in the instant case the victim was burnt over
30% of the body is neither here nor there for the
reason there is hardly any percentage difference
between 30% and 35%. In any case, the opinions
would always have a margin of 5% on either side.
These opinions are not formulas of mathematics and
hence have not to be applied as equations."
38. In the instant case, the post-mortem of the
deceased records 30% of the body surface area being burnt.
The cause of death is septicemia following ante mortem burn
injuries possible by corrosive substance. The deceased died
after four days of the incident. The utterance of the appellant
heard by PW-6 soon after the incident „maine Murshid Alam ka
kaam tamam kar diya hai‟ shows his intention to finish off the
deceased. The quantity of acid thrown on the deceased can
be measured by the fact that 30% of the surface area of the
body was burnt. Thus, the conclusions drawn by the learned
Trial Judge cannot be faulted.
39. We find no merits in the appeal. The appeal is
dismissed.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
August 06, 2009
Dharmender / mm
