Harbhajan Singh vs State (Delhi Admn.)
2009 Latest Caselaw 3176 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Judgment reserved on: August 06, 2009

                                        Judgment delivered on : August 13, 2009


+       CRIMINAL APPEAL NO.58/1995

        HARBHAJAN SINGH                                ..... Appellant
                     Through:           Ms.Meena Chaudhary, Advocate

                          Versus

        STATE (DELHI ADMN.)                               ..... Respondent
                      Through:          Mr.Sunil Sharma, APP.

        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.      Whether Reporters of local papers may be allowed to see
        the judgment?                                             Yes
2.      To be referred to the Reporter or not ?                   Yes
3.      Whether the judgment should be reported in Digest ?       Yes
AJIT BHARIHOKE, J.

1. The appellant has been convicted under Section 302 IPC by the

learned Additional Sessions Judge for having committed murder of

deceased Ashraf by throwing acid upon him and sentenced to undergo

imprisonment for life and also to pay fine of Rs.2,000/-.

2. Briefly stated, the case of the prosecution is that on 20.11.1987

at about 9.30 PM, injured Ashraf (since deceased) was got admitted in

JPN Hospital by PW4 Mubarak with alleged history of having sustained

burns when someone threw acid upon him while he was defecating

near Shop No.57, Ram Nagar, Qutab Road, Delhi. The duty constable

Surjit Singh (PW15) conveyed the message to the Police Station Nabi

Karim which was recorded as DD No.24A at the police station. A copy

of DD report was handed over to S.I. Durga Dutt for investigation. He

accordingly reached JPN Hospital along with Constable Naresh Kumar

and collected MLC of the injured Ashraf, who was declared unfit for

statement. The Investigating Officer on the basis of information

available with him, made endorsement on the copy of DD No.24A and

sent it to the police station for registration of the case and on the basis

of the said information, formal FIR No.464/87 dated 21.11.1987 was

registered at 12.10 AM under Section 326 IPC. SI Durga Dutt did not

find any eye witness in the hospital, however, on coming to know the

place of occurrence from the address mentioned in the MLC, he went to

the place of occurrence, but could not find any eye-witness there

either.

3. On 21st November, 1987, the injured Ashraf was declared fit for

statement and the Investigating Officer recorded his statement under

Section 161 Cr.P.C. It is further the case of the prosecution that a

statement of injured Ashraf was also recorded under Section 164

Cr.P.C. by the learned Metropolitan Magistrate on 21.11.1987 in the

hospital.

4. Ashraf expired on 25.11.1987 and as per the post-mortem report

Ex.PW-10/D, the cause of his death was as a result of septicaemia

consequent upon the corrosive burns. Body of the deceased was sent

for post-mortem and the doctor concerned in his report Ex.PW10/D has

opined that the burns suffered by the deceased were sufficient to

cause death in ordinary course of nature. The Investigating Officer also

recorded the statement of witnesses, recovered the mug from the spot

of occurrence and after completion of the formalities of investigation,

submitted the charge-sheet against the appellant under Section 302

IPC. The appellant was charged under Section 302 IPC. He pleaded

not guilty and claimed to be tried.

5. On the conclusion of trial, the learned Additional Sessions Judge

relying upon the evidence produced by the prosecution as also the

dying declaration of the deceased Ex.PW12/A recorded by the

Metropolitan Magistrate held the appellant guilty of murder of

deceased Ashraf punishable under Section 302 IPC and sentenced to

undergo life imprisonment accordingly.

6. The learned counsel for the appellant has submitted that the

learned Additional Sessions Judge has returned the finding of

conviction against the appellant mainly on the basis of the dying

declaration of the deceased Ex.PW12/A made before the Metropolitan

Magistrate and the eye witness account of occurrence given by PW4

Mubarak. She has submitted that the Trial Court has failed to take

notice of the fact that PW4 Mubarak is not a reliable witness as his

testimony suffers from various contradictions and infirmities and also

that the dying declaration Ex.PW12/A does not inspire confidence as it

is contradictory to the earlier dying declarations made by the deceased

to PW4 Mubarak and PW5 Nissar Ahmed while he was being brought to

the Hospital and subsequently to the Doctor concerned who initially

attended to the deceased at JPN Hospital and prepared his MLC

Ex.PW10/A.

7. Expanding on the argument, she has submitted that PW4

Mubarak and PW5 Nissar Ahmed in their respective testimonies have

deposed that while the deceased was being brought to the Hospital, he

was complaining and murmuring that acid had been thrown upon him,

which according to her is the first dying declaration of the deceased in

which he did not name the appellant. From this, she has urged us to

infer that, the Trial Court ought to have concluded that the deceased

was not aware of the identity of the person who had thrown acid upon

him. She has submitted that even before the attending Doctor at JPN

Hospital, the deceased did not name the appellant as the culprit. In

support of this contention, she has drawn our attention to the MLC of

the deceased Ex.PW10/A wherein the attending Doctor has endorsed

that the patient was brought to the hospital with alleged history of

"sustaining burns when someone threw acid over him while he was

defecating near Shop No.57 Ram Nagar". She has also pointed out

that on the MLC, Doctor has mentioned that the information recorded

in the MLC was given by the patient himself and that the patient has no

history of loss of consciousness. From this, according to the learned

counsel for the appellant, it is apparent that when the deceased

reached at JPN Hospital, he was fully conscious and he himself narrated

the history regarding his burn injuries to the Doctor wherein he did not

name the appellant. She has submitted that had the appellant actually

thrown acid upon the deceased, he would have definitely named him in

the alleged history given to the Doctor as the culprit, therefore,

according to her this is a case of contradictory dying declarations and

as such the appellant is entitled to the benefit of doubt.

8. We do not find any merit in this contention. So far as the

testimony of PW4 Mubarak and PW5 Nissar Ahmed to the effect that on

the way to the Hospital deceased was murmuring that acid has been

thrown on him. It cannot be termed as a dying declaration in true

sense because PW4 Mubarak has also said in his cross-examination

that on the way, the deceased was unconscious and he was murmuring

that acid has been thrown on him. That being the case, murmuring of

the accused at best was the statement of a semi-conscious person,

therefore, it cannot be termed as dying declaration of the deceased.

So far as second dying declaration in the form of endorsement on the

MLC is concerned, it cannot be given much weightage, firstly, because

the Doctor concerned who had allegedly made the endorsement has

not been produced as a witness. Secondly, when a seriously injured

patient is brought to the hospital casualty, the priority of the Doctor is

to attend to the patient to save his life and he is not expected to ask

for the complete details of the incident, therefore, non-mention of

name of the appellant as culprit in MLC cannot be treated as a

contradiction so as to cast doubt upon the dying declaration recorded

by the Metropolitan Magistrate. Perusal of the dying declaration

Ex.PW12/A would reveal that in the aforesaid dying declaration, the

deceased has given the detailed account about the manner in which

the occurrence had taken place. The Magistrate in her statement as

PW12 has categorically stated that on reaching the Hospital on

21.11.1987 at about 4.20PM, she recorded the dying declaration of the

injured Ashraf after he was identified by SI Durga Dutt and, Doctor

Rajbir had declared injured Ashraf fit for statement. She has proved

the relevant endorsements signed by the Investigating Officer and the

Doctor as Ex.PW12/B and PW12/C. We, therefore, find no reason to

disregard the dying declaration Ex.PW12/A which was recorded by a

Judicial Magistrate after Ashraf was declared fit for making statement.

9. The learned counsel for the appellant has further argued that

perusal of the death summary of the deceased prepared by the Doctor

concerned would show that the deceased died because of 60 per cent

acid burns with septicaemia and during treatment, he was

administered antibiotics and sedatives. She has submitted that the

incident took place on 20.11.1987 and the deceased died on

25.11.1987 at about 11.15 PM and during said period, as per the death

summary, the patient was put on the dose of antibiotics and sedatives,

therefore, it can be easily inferred that the deceased at the time of

recording of his statement under Section 164 Cr.P.C. by the

Metropolitan Magistrate which is being treated as dying declaration

(Ex.PW12/A) was under sedation and as such he was not in fit state of

mind to make the dying declaration, therefore, also learned trial Judge

ought to have held that dying declaration Ex.PW12/A did not inspire

confidence.

10. We are not impressed with this argument. A perusal of the

Certificate Ex.PW12/B/12/C would show that when the Metropolitan

Magistrate reached at JPN Hospital on 21.11.1987 at about 4.20 PM,

patient Ashraf, who was on bed No.13, Burn Ward No.11, LNJP Hospital,

was identified before the Metropolitan Magistrate by SI Durga Dutt and

Doctor Rajbir Singh certified him to be fit for making statement. In

view of the aforesaid certification Ex.PW12/B and PW12/C and the fact

that the concerned Judicial Magistrate in her testimony has stated that

she had satisfied herself about the mental condition of the patient, we

find no reason to discard the dying declaration Ex.PW12/A on the

ground that patient was not in fit mental condition to make the dying

declaration. Thus, we are of the view that the learned Additional

Sessions Judge has rightly relied upon the dying declaration.

11. The learned counsel for the appellant has submitted that as per

the testimony of Investigating Officer, he admittedly visited the spot of

occurrence at 2.00 PM where he conducted investigation, recovered

the burnt clothes of the deceased and prepared the rough site plan.

Thereafter, he visited the Police Station and also went to the Hospital

and from there, he went to the court for moving an application for

recording of the dying declaration of the deceased and as per the

statement of PW12 Smt. Urmila Rani, the then Metropolitan Magistrate,

she recorded the dying declaration of the deceased at 4.20 PM. She

has submitted that so much activity on the part of the Investigating

Officer is not possible within a short span of two hours and twenty

minutes, therefore, the investigation is tainted. We do not find any

substance in this contention. It is common knowledge that traffic

condition in Delhi in the year 1987 was not so bad, there was not much

traffic congestion on roads, therefore, travelling time in those days

from one place to other was quite less. There is not much distance

between the Police Station, place of occurrence and JPN Hospital,

therefore, it is not surprising that Investigating Officer had managed to

visit the spot of occurrence, seized the burnt clothes, prepared rough

site plan and after visiting the Police Station and the Hospital reached

the court well in time to move application for recording of dying

declaration of the deceased, otherwise also, there is no reason to

disbelieve the testimony of PW12 Smt. Urmila Rani, the then

Metropolitan Magistrate who is categoric in her deposition that she

recorded the dying declaration at 4.20 PM on 21.11.1987.

12. The second limb of argument of the learned counsel for the

appellant is that the eye witness account of the occurrence given by

PW4 Mubarak is not worthy of any credence because his testimony

suffers from various contradictions and infirmities. Expanding on the

argument, she has submitted that according to PW4 Mubarak, he

witnessed the incident from the roof of Shop No.55/56 while he was

urinating. She has submitted that the witness has stated that she saw

appellant Harbhajan Singh throwing acid on the deceased with a can

while the deceased was defecating at the nali on the backside of Shop

No.57. She has pointed out that aforesaid version of PW4 Mubarak is

contradicted by the version of the deceased in his dying declaration

Ex.PW12/A, wherein the deceased has stated that acid was thrown

upon him by the appellant while he was washing his hands with water

from bottle after easing himself. She has further pointed out that PW4

Mubarak has stated that he lifted the burnt clothes of victim from near

spot of occurrence and placed them in Shop No.57, which he later on

handed over to the Investigating Officer, which version is contradictory

to the version of PW5 Nissar Ahmed who has stated that the

Investigating Officer had lifted and seized the burnt clothes of Ashraf

from the spot of occurrence. She has submitted that in view of the

aforesaid contradictions, the Trial Court ought to have rejected the

testimony of PW4 Mubarak being unworthy of credit. We do not find

any force in this contention of the learned counsel for the appellant.

The contradictions pointed out by the appellant are minor in nature and

do not go to the root of the case. Perusal of the MLC Ex.PW10/A would

show that it was PW4 Mubarak who had accompanied the deceased to

the Hospital, therefore, his presence at the spot of occurrence at the

relevant time cannot be doubted. Otherwise also, if the testimony of

PW4 Mubarak is analysed in the background of other evidence, it

appears natural and the minor contradictions which have been pointed

out by the learned counsel for the appellant are of no consequence and

can be attributed to failure of memory due to lapse of time.

13. The learned counsel for the appellant has further submitted that

admittedly the occurrence took place in winter season on 21.11.1987

at about 9.30 PM. She has pointed out that as per the testimony of

PW7 Head Constable Raghbir, Police Photographer when he went to

photograph the place on the same night, it was total darkness and that

the photographs taken by him do not show any bulb at the electric pole

located near the spot of occurrence. She has further pointed out that

PW6 Balbir Singh, Draftsman in his cross-examination has stated that

PW4 Mubarak had told him that he had seen the incident in the light

emanating from the electric pole and not from the ventilators. She has

submitted, that being the case, PW4 Mubarak could not have seen the

occurrence from the roof of Shop No.55/56 as there was no electric

bulb on the electric pole located near the spot.

14. There is no merit in this contention, particularly, when PW4

Mubarak has categorically stated that he witnessed the occurrence in

the light which was coming out from ventilators and windows in the

rear side of cluster of the shops. Otherwise also, there is nothing on

record to suggest that PW4 Mubarak had any motive or reason to

depose falsely against the appellant. Appellant in his statement under

Section 313 Cr.P.C. has tried to impute motive to PW4 Mubarak for

deposing falsely against him by stating that he had advanced Rs.3000/-

to Mubarak which he refused to pay despite of demand and since he

did not wish to pay back the loan, he had tried to falsely implicate him.

Aforesaid explanation, to our mind, is nothing but a vain attempt to

cast doubt upon the veracity of the witness. Had the appellant actually

lent a sum of Rs.3000/- to Mubarak, which was a huge amount in 1987,

there would have been some documentary proof of the same which

has not been produced. We, therefore, do not find the explanation

plausible and are of the view that the Trial Court has rightly

appreciated the evidence and relied upon the testimony of PW4

Mubarak which is corroborated by the dying declaration made by the

deceased.

15. Lastly, it has been argued that even if the case of the prosecution

version is taken to be gospel truth, then also given the facts and

circumstances of the case, Section 302 of IPC is not attracted and, at

the most, the appellant could be convicted for the offence under

Section 326 IPC because by no stretch of imagination, it can be inferred

that the appellant had any other intention except to cause grievous

injury to the deceased when he threw acid upon him.

16. The learned counsel for the State has submitted that the instant

case squarely falls within the purview of Section 300 IPC because the

appellant had thrown sufficient quantity of sulphuric acid, which is

highly corrosive material, resulting in acid burns on major portion of

body of the deceased. In support of this contention, he has relied upon

the judgment of the Hon'ble Supreme Court in Sudershan Kumar v.

State of Delhi, (1975) 3 SCC 831. In the above referred case before

the Hon'ble Supreme Court, the accused had intentionally poured acid

on the body of the deceased resulting in acid burns to the extent of 35

per cent of the body. Hon'ble Supreme Court, on consideration of the

facts and circumstances, held that such injury in the ordinary course of

nature is sufficient to cause death and, therefore, concluded that case

of the appellant was squarely covered within the purview of Section

300 Thirdly.

17. We do not find any merit in the contention of the appellant.

Section 300 IPC defines murder, which reads thus:

"300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly.- 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, or-

Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

------------"

From the evidence on record, it is established that the appellant threw

sulphuric acid from a can on the unsuspecting victim Ashraf. This act

on the part of the appellant is sufficient to infer that the appellant

threw sulphuric acid on the deceased with intention to cause him

bodily injury, i.e., acid burns. It is well-known that sulphuric acid is a

highly corrosive material and if it is thrown on a person in sufficient

quantity, it is likely to cause death of that person. As per the post

mortem report Ex.PW10/D, the deceased had suffered corrosive burns

in patches, over face, chest, abdomen, both upper and lower limbs and

the back involving 75 per cent surface area of the body which is a

clear intention of the fact that a large quantity of sulphuric acid was

thrown upon the deceased, therefore, the appellant was expected to

know that the resultant injury caused to the deceased because of

exposure to the sulphuric acid thrown upon him was likely to cause

death of the deceased. Therefore, in our considered view, all the

ingredients of Clause Second of Section 300 IPC are fulfilled in this

case. Not only this, perusal of the post mortem report as also the

statement of PW12 Dr. Anil Aggarwal who conducted post mortem on

the dead body of the deceased, it is clear that in the opinion of the

Doctor concerned, the burns caused to the deceased were sufficient to

cause death in ordinary course of nature. Therefore, even the

ingredients of Clause Thirdly of Section 300 IPC are also fulfilled. Thus,

we have no hesitation to conclude that the conviction under Section

302 IPC recorded by the learned Additional Sessions Judge is proper.

18. In view of the discussion above, we do not find any infirmity in

the impugned Judgment convicting the appellant under Section 302

IPC. There is no merit in the appeal. It is, accordingly, dismissed.

19. The appellant Harbhajan Singh is on bail. His bail-cum-surety

bond is, accordingly cancelled. He is ordered to be taken into custody

to undergo the remaining sentence as awarded by the learned

Additional Sessions Judge.

AJIT BHARIHOKE, J.

AUGUST 13, 2009                           SANJAY KISHAN KAUL, J.
gm/pst