Delhi High Court
Ram Niwas vs State on 22 October, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: October 22, 2009
+ Crl.A No.184/1996
RAM NIWAS ..... Appellant
Through: Mr.S.B. Dandapani, Advocate/
Amicus Curiae with Appellant
in person.
Versus
STATE ..... Respondent
Through: Mr.Pawan 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? No
2. To be referred to the Reporter or not ? No
3. Whether the judgment should be
reported in Digest ? No
SANJAY KISHAN KAUL, J.(ORAL)
1. The obsession of the appellant at the young age of 21 years with
a girl Shobha made him commit the heinous crime of throwing acid on
her which ultimately caused her death.
2. The facts in brief are that the appellant had an infatuation with
Shobha and wanted to marry her. His overtures were spurned by
Ms.Shobha. On the fateful day of 03.06.1988 at about 1.00 p.m. when
Ms.Shobha was coming out from her home and going to her roof, the
appellant came out of his room and catching hold of her, pulled Shobha
Crl.A.No.184/1996 Page 1 of 5
inside the room. He threatened her with dire consequences if she
refused his love and thereafter took out a bottle containing acid from
underneath a box and poured it on her. In the process, the appellant
also suffered some acid burns. Ms.Shobha sustained 90% burns and
ultimately succumbed to the injuries on 4/5.7.1988.
3. Head Constable Shyam Lal received a telephonic information
pertaining to the admission of the deceased in JPN Hospital which was
recorded as DD No.16A which was entrusted to S.I. Soji Ram. At about
4.30p.m., S.I. Chila Ram received a rukka Ex.PW11/A from S.I. Soji
Ram, on the basis of which the FIR Ex.PW11/B was recorded. The case
was initially registered under Section 307 IPC which was subsequently
converted to 302 IPC on the demise of Ms.Shobha. We may notice that
prior to her demise, S.I. Soji Ram recorded the statement of the
deceased in the presence of Constable Yashbir Singh, PW12, which
came to be treated as the dying declaration and formed the basis of
the FIR. The SDM Parimal Rai recorded the dying declaration on
18.6.1988 when the deceased was lying admitted in JPN Hospital with
90% burns. Both these dying declarations implicate the appellant. The
dying declaration was recorded after ensuring that Ms.Shobha was in a
position to make her statement and after due certification to that effect
by the doctors. The SDM obtained the left thumb impression of
Ms.Shobha.
4. On the charge-sheet being filed, charges were framed. The
appellant pleaded innocence and claimed trial. On completion of trial,
Crl.A.No.184/1996 Page 2 of 5
the appellant was convicted under Section 302 IPC vide judgment of
the learned Additional Sessions Judge dated 29.1.1996 and was
sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-
and in default thereof undergo SI for three months as per the order of
sentence dated 29.1.1996. The appellant aggrieved by the same has
preferred the present appeal.
5. Learned counsel for the appellant, on instructions from the
appellant and as per the synopsis filed in Court has pleaded guilty to
the act of throwing acid on the deceased in the manner set out by the
prosecution. He thus gives up all the grounds of challenge to the order
of conviction except to plead that in the given facts of the present
case, the conviction ought to have been under Section 304 IPC and not
under Section 302 IPC. We have heard the submissions of learned
counsel for the parties in this context and the endeavour of learned
APP was to support the impugned judgment.
6. Learned APP emphasized that the act of the appellant in throwing
acid on the deceased on account of his obsession with her calls for no
mercy in view of the judgment of the Supreme Court in Sudershan
Kumar Vs. State of Delhi, (1975) 3 SCC 831 which has been relied
upon by a Division Bench of this Court in Crl. A. No. 172/2008, Baljeet
Kumar Vs. State (Govt. of NCT of Delhi) decided on 6.8.2009,
where conviction under Section 302 of the IPC has been upheld. On
the other hand, learned counsel for the appellant has relied upon the
Crl.A.No.184/1996 Page 3 of 5
judgment of another Division Bench of this Court in Udai Singh Vs.
State, 155 (2008) DLT 275.
7. The judgment in Udai Singh's case (supra) is factually somewhat
similar inasmuch as the endeavour of a man to get the affection of a
woman and the consequent failure to do so resulting in his throwing
acid on her and causing her death after she suffered 55% burns gives a
similar background. However, if the judgment is scrutinized closely,
the reasoning why the conviction was changed from one under Section
302 IPC to Section 304 Part I IPC is set out in Para 32 which reads as
under:-
"32. From the aforesaid judgments of the Hon'ble Supreme Court it is clear
that in deciding the question whether the offence of culpable homicide
amounts to murder or not the Hon'ble Supreme Court considered the
medical opinion regarding the nature of injuries as well as the period after
which death of the victim takes place as very important factors and
depending upon the facts and circumstances of each case the conviction of
the accused was converted from Section 302 IPC to either 304 (I) IPC or
304 (II) IPC. In the case before us, the medical opinion as to whether the
burn injuries sustained by the deceased were sufficient in the ordinary
course of nature is absent and not only that, as noticed already, even the
death of the deceased had taken place after two months of occurrence and
the cause of death was opined by the autopsy surgeon to be due to shock
and secondary infection due to burn injuries. There is no evidence adduced
by the prosecution regarding the treatment given to the deceased from the
date of the incident till her death. In these circumstances, we are of the
view, that none of the four clauses of Section 300 IPC which convert the
offence of culpable homicide to 'murder' can be said to be existing.
Therefore, the offence which the accused can be said to have been
committed is culpable homicide not amounting to murder."
8. If we look to the factual matrix of the present case, we find that
neither the MLC nor the post mortem report has been proved by
examining the doctors. The death occurred about a month after the
Crl.A.No.184/1996 Page 4 of 5
incident of throwing acid. The question which arises is whether the
burn injuries sustained were sufficient in the ordinary course of nature
to cause death, which could have been opined by a medical expert.
The failure of the prosecution to examine the doctor who conducted
post mortem has left a lacuna in the case. This lacuna undoubtedly
has caused a prejudice to the case of the prosecution since this aspect
does not stand proved and thus the principles laid down in Udai Singh's
case (supra) do apply to the present case.
9. Despite the aforesaid, we are not inclined to take a lenient view
while converting the conviction from one under Section 302 IPC to
Section 304 Part I IPC as in Udai Singh's case (supra) and in view of the
heinous nature of the crime, convict the appellant to undergo
imprisonment for 10 years for causing death of the deceased
Ms.Shobha and also to pay fine as directed by the trial Court.
10. We find from the nominal roll that the appellant has undergone a
sentence of over 11 years and thus has served the sentence imposed
by us and thus do not require to be taken into custody. The bail bond
and surety thus stand discharged.
11. The appeal is allowed to the aforesaid extent and the order of
conviction and sentence stand modified accordingly.
SANJAY KISHAN KAUL, J.
OCTOBER 22, 2009 AJIT BHARIHOKE, J.
gm
