Om Prakash vs State
2011 Latest Caselaw 4099 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved On: 11th August, 2011
                     Judgment Delivered On: 24th August, 2011

+                         CRL.A.163/1999

        OM PRAKASH                               ..... Petitioner
                     Through:   Mr.Aditya Sharma, Amicus Curiae.

                                versus

        STATE                                   .....Respondent
                     Through:   Mr.Pawan      Sharma,     Standing
                                Counsel    (Crl.) with    Mr.Harsh
                                Prabhakar, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the
        Digest?
PRADEEP NANDRAJOG, J.

1. The appellant was charged for having murdered his wife Kaushalya and 2 minor children; Vikram and Vickey and for having caused simple hurt to 2 women; Usha and Asha.

2. The motive attributed for the crime pertaining to the murder of Kaushalya was that the appellant suspected Kaushalya of having illicit relation with a neighbour named Jogi.

3. The place of the crime was the ground floor of the building in which floor Usha and Asha lived with their husbands and children and on the top floor whereof appellant and his wife Kaushalya used to reside.

4. As per the prosecution, on 1.5.1991, at about 10:40 AM, when Kaushalya was sitting on a dari (mattress) on the ground floor i.e. the residence of Usha and Asha and when Vikram and Vickey, aged 3 years and 1½ years respectively, sons of Usha were sleeping on either side of Kaushalya, having an intention to kill Kaushalya appellant came down from the top floor with a jug full of acid and threw the same on Kaushalya; needless to state the acid caused corrosive burn injuries to the 2 infant boys. Usha and Asha also received acid burn injuries on their person when they intervened to save the infant boys and Kaushalya. After committing the dastardly act the appellant fled and was apprehended 15 days later from village Bakhtewarpur and was found with corrosive burn injuries on his hands and chest.

5. In view of the evidence led at the trial the learned Court of Sessions, vide impugned judgment and order dated 18.9.1997 has convicted the appellant for the offence of having murdered Kaushalya, Vikram and Vickey and for having caused simple hurt to Usha and Asha. Needless to state, for the offence of murder the appellant has been sentenced to undergo imprisonment for life and for the offence of causing simple hurt to Usha and Asha has been sentenced to under rigorous imprisonment for 1 year.

6. A perusal of the impugned judgment would reveal that the learned Trial Judge has believed the presence of Usha and Asha in their house when the crime was committed. Thus, the eye-witness account deposed to by the 2 ladies has been believed. For motive for the crime, apart from the testimony of Usha and Asha the learned Trial Judge has relied upon the testimony of Jogi PW-4 and Ram Kishan PW- 8, father of Kaushalya. The learned Trial Judge has found incriminating evidence in the form of the appellant absconding and when he was arrested being found to be having corrosive burns on his hands and chest which injury appellant failed to satisfactorily explain and needless to state the injury was linked to the fact that for the commission of the crime acid was used and thus the inference that when the appellant threw acid on his wife the same spilled on to his hands and chest.

7. It may be highlighted that Kaushalya died on 25.6.1991 and as per the prosecution, when she was in her senses had made a statement to SI Gurcharan Singh PW-21 in which she had implicated her husband i.e. the appellant, but for the reason there was discrepancy in the evidence as regards the time and the place where said statement was recorded and additionally for the reason the Investigating Officer, who had enough time to get recorded Kaushalya's statement before a Sub Divisional Magistrate, did not do so; the learned Trial Judge has ignored Kaushalya's alleged statement, which we would highlight, upon proof, would be required to be treated as Kaushalya's dying declaration.

8. Since, neither before the learned Trial Judge nor before us, the place where Kaushalya as also Vikram and Vickey received acid burn injuries, being the residence of Usha and Asha, has not been disputed and it was also not disputed that the 3 died as a result of suffering acid burn injuries as also the fact that they suffered the burn injuries at around 10:40 AM on 1.5.1991, we need not note the evidence pertaining to the various DD entries recorded pertaining to the crime, the registration of the FIR and the seizures effected at the spot. We would be noting the evidence pertaining to the motive, the testimony of the eye- witnesses, evidence pertaining to appellant absconding and found with acid burns on his hands and chest as this is the incriminating evidence used by the learned Trial Judge to convict the appellant and in appeal it would be our duty to re-charter the journey navigated by the learned Trial Judge and while so doing take care that what has been seen as water by the learned Trial Judge is not a mirage.

9. We pick up our threads from the testimony of lady Ct.Usha PW-20 who has deposed that she received an anonymous telephone call at 10:49 AM on 1.5.1991 when she was on duty at the Police Control Room stating that a man has thrown acid on a woman at C-82 Ranjit Nagar which she entered in the PCR form Ex.PW-10/A and passed on the same to PS Patel Nagar. SI Arjun Dass PW-10 on duty in PCR vehicle No.DNA-5839, being the nearest PCR vehicle, as deposed to by him, on receiving information that a person had thrown acid on a lady and 2 children reached

the building in question and removed a lady and 2 infant boys to DDU Hospital in his PCR van.

10. SI Gurcharan Singh PW-21, as deposed to by him was handed over DD No.4A, Ex.PW-21/A, recorded at the police station on the basis of information transmitted by Ct.Usha and he left for the place of the incident and there-from proceeded to the hospital upon learning that the victims had been removed to the hospital and claims to have recorded Kaushalya's statement Ex.PW-21/B and making the endorsement Ex.PW-21/C sent the rukka through Ct.Sunder Lal for FIR to be registered. He further claims to have met Usha at the DDU hospital with acid burn injuries on her person.

11. Infant Vikram aged 3 years, obviously for the reason of his tender age, was in a serious condition due to acid burn injuries and was thus removed to B.L.Kapur Memorial Hospital but unfortunately died en-route. His body was seized and sent to the mortuary for post-mortem. Dr.S.K.Khanna PW-27 conducted post-mortem of the dead body of Vikram and prepared the report Ex.PW-27/A in which he recorded that the body had epidermal burns on the forehead, left and right side of face, front of the neck, upper lip, both buttocks, upper part of both sides and back of both legs, front of chest, abdomen, back of chest and pelvis. He opined that the epidermal burns were caused by corrosive substance and were sufficient to cause the death in the ordinary course of nature.

12. Usha PW-2 was given medical treatment at DDU Hospital and the un-exhibited MLC pertaining to Usha (at page 403 of the Trial Court Record) shows that she had received acid burn injuries. Asha PW-3 was treated for acid burn injuries at Humble Nursing Home and as per MLC Ex.PW-12/A she had acid burns on her person. The 2 MLCs were taken into possession by the Investigating Officer, one of which, as noted herein above has been proved at the trial.

13. Statements of Usha PW-2, Asha PW-3, Jogi PW-4, Ram Kishan PW-8, Jagdish husband of Usha PW-11 and Nanhe Ram, husband of Asha, PW-25 were recorded. All of whom implicated the appellant.

14. The appellant was apprehended on 16.5.1991 as deposed to by SI Gurcharan Singh PW-21 and corroborated by Nanhe Ram PW-25. He was medically examined by Dr.Anil Aggarwal PW-30 who prepared the MLC Ex.PW-30/A on 17.5.1991 and recorded thereon that he had detected corrosive burn injuries which were 2 weeks old on the hands and the chest of the appellant.

15. Vickey aged 1½ years died on 10.6.1991 and his body was seized and sent to the mortuary for post-mortem. Dr.L.K.Barua PW-18 conducted the post-mortem on 11.6.1991 and prepared the report Ex.PW-18/B as per which Vickey had acid burn injuries on right side of the forehead, right ear, right cheek and right side of the neck. There were scattered burn injuries on the right side of abdomen and

right shoulder till the wrist. Cause of death opined was pulmonary pneumonia secondary to burns.

16. Kaushalya died on 25.6.1991. Her body was seized and sent to the mortuary for post-mortem. Dr.L.K.Barua PW-18 conducted the post-mortem on 25.6.1991 and prepared the report Ex.PW-18/A as per which Kaushalya had acid burn injuries on the front and middle of chest, left auxiliary area, front side of left shoulder and medial aspect of left arm up to the elbow and the right side of clavicle and medial aspect of the right arm. Cause of death opined was septicaemia.

17. Needless to state, there is enough forensic evidence to show that Kaushalya, Vikram and Vickey died due to causes directly attributable to they being burnt with acid. There is medical evidence that Usha and Asha sustained acid burn injuries. There is medical evidence that the appellant had likewise sustained acid burn injuries which were opined to be 2 weeks old when appellant was examined on 17.5.1991 and this takes the date of injury upon the person of the appellant to be around the date when Kaushalya, Vikram and Vickey suffered acid burn injuries.

18. At the trial Jogi PW-4 deposed that he used to reside opposite the building where appellant resided with his wife Kaushalya, on the ground floor whereof Asha, Usha with their husbands and families resided. He further deposed that notwithstanding he being 18 years of age and Kaushalya being 35 years of age and he addressing her as 'Chachi', the appellant used to suspect Kaushalya and he

having an affair due to which appellant used to beat Kaushalya.

19. Relevant would it be to highlight that in the cryptic cross-examination which spans only 7 lines, except for suggesting to Jogi that he was deposing falsely, not even an attempt has been made to challenge the credibility of the witness.

20. Ram Kishan PW-8, father of Kaushalya deposed that his daughter was married with the appellant in the year 1984. 4 children were born to the couple. Initially his daughter had no complaint against her husband but later on there was a matrimonial discord.

21. Relevant would it be to state that Ram Kishan has not deposed that his daughter used to complain to him that her husband used to ill treat her because he suspected her fidelity.

22. Usha PW-2 deposed that on 29.4.1991 Kaushalya came to their house and complained to Nanhe Ram that her husband was beating her and sought permission to live in their house for 2 to 3 days. Nanhe permitted Kaushalya to stay in their house. On 30.4.1991 appellant came to their house at 7:00 AM and asked Kaushalya to accompany him. Her husband Jagdish told the appellant that since he used to beat Kaushalya she was not willing to go with him. The appellant threatened that he would tackle her husband for helping Kaushalya. Appellant suspected that Jogi who lived opposite her house was having an illicit relationship with

Kaushalya. When Asha, her devrani, just came out after easing herself at around 10:45 AM on 1.5.1991 and at that time when she was sitting on a dari on the floor and Kaushalya was likewise sitting on a dari and her son Vikram was sitting and her son Vickey was lying on the dari, appellant came with a steel jug in his hand and commanded Kaushalya to accompany him and as she refused, appellant caught hold of Kaushalya's hand and poured acid on her. He then poured acid on her sons Vikram and Vickey. Some acid spilled on to her left hand. Asha started running out of the room. Appellant caught hold of Asha and poured acid on her and throwing the jug in the room he fled. Asha raised alarm of 'pakdo pakdo' but the appellant ran away.

23. Asha PW-3 deposed in sync with the testimony of Usha with the only discrepancy being that she said that Vikram and Vickey were lying on the dari, as against Usha saying that Vikram was sitting and Vickey was lying on the dari by the side of Kaushalya. Asha has further deposed that Kaushalya used to treat her as a bhabhi because they were from the same village.

24. Relevant would it be to note that Asha and Usha have been subjected to cross-examination and have not been confronted with their statements recorded under Section 161 Cr.P.C. and this we note to highlight the fact that what they told the Investigating Officer contemporaneously has been deposed to by them in Court.

25. The only discrepancy which could be pointed out to us during argument in the appeal was that as per Asha Vikram

and Vickey were lying on the dari by the side of Kaushalya and as per Usha Vikram was sitting and Vickey was lying on the dari.

26. Nanhe Ram PW-25, husband of Asha and Jagdish PW- 11, husband of Usha have deposed in sync that due to Kaushalya being treated as a niece they hed permitted her to stay in their house on 29.4.1991 because appellant used to beat her and that on 30.4.1991 they did not permit appellant to take away Kaushalya when he so desired at around 7:00 in the morning. Nanhe Ram further deposed that at around 10:45 AM when he was returning to his house he heard his wife Asha shriek 'pakdo pakdo' and he simultaneously saw appellant run away, whom he chased but could not apprehend. Nanhe also deposed that the appellant was apprehended on 16.5.1991.

27. We ignore all other evidence for the simple reason where the Court has before it an eye-witness account, if the eye-witnesses is believed, no inference needs to be drawn. This is the strength of percipient evidence.

28. The place of the occurrence is the residence of Asha and Usha. Being housewives it was natural for the 2 ladies to be in their house at 10:45 AM. No suggestion was given to the 2 when they were cross-examined that they were not in their house. The only suggestion given to them is that somebody else threw acid and that they were deposing falsely. From the fact that Asha and Usha also received acid burn injuries we have further proof of their presence when the crime was committed. No motive has surfaced for the 2

ladies to falsely implicate the appellant. There being neither inconsistency nor any improvement in the testimony of the 2 ladies and the so-called discrepant statement made by the 2 being trivial, we have to hold that the 2 ladies have told the truth. Their evidence also brings out a motive for the crime which has independently surfaced through the testimony of Jogi and their husbands namely Nanhe Ram PW-25 and Jagdish PW-11. Through the testimony of Nanhe Ram we have the evidence of incriminating conduct of the appellant who was seen by Nanhe Ram running away from the scene of the crime. Through the medical examination report of the appellant we have proof that even the appellant received acid burn injuries around the day when his wife, Vikram and Vickey received acid burn injuries. It assumes importance that when said incriminating evidence was put to the appellant vide Question No.27 he replied: 'Earlier portion is correct that I was got medically examined but later portion I do not know what doctor has done'.

29. The appellant had to explain how he suffered acid burn injuries. It was a fact in his personal knowledge and since he had not spoken about it an adverse inference has to be drawn against the appellant, being that, he suffered acid burn injuries as he threw acid on his wife and at said point of time Vickey and Vikram were on the either side of his wife.

30. Appellant has not challenged the date of his arrest. There is evidence that he absconded from his house and this shows his guilty mind.

31. The evidence conclusively establishes that the appellant had a motive and that in furtherance of the motive he threw acid on his wife. It was argued before us that the motive could not be to kill Kaushalya but was revenge resulting from anger since Kaushalya refused to return with the appellant as deposed to by Asha, Usha, Nanhe Ram and Jagdish. There-from, it was sought to be urged that at best the evidence showed a desire on the part of the appellant to injure his wife and no more.

32. We do not agree. The quantity of acid thrown is so huge, a fact which can be gleaned from the extensive burn injuries suffered by Kaushalya, Vikram and Vickey, that it must be inferred that the appellant desired to kill his wife. In any case, a person who throws a jug full of acid on a person has to be saddled with the knowledge that he is doing an imminently dangerous act which would in all probability cause the death of the person on whom acid is thrown. The argument that Kaushalya died after 1 month and 25 days and the cause of death was septicemia i.e. the nexus between the act and the death had snapped, is rejected by us in view of the jurisprudence pertaining to acid burns, which jurisprudence was noted in the decision penned by one of us, Pradeep Nandrajog, J., in the decision dated 11.2.2009 deciding Crl.Appeal No.37/2005 'Mohd.Kamal Hussain vs. State (GNCT of Delhi)', in para 41 whereof the decision of the Supreme Court reported as AIR 1974 SC 2328 Sudershan Kumar vs. State of Delhi was noted to highlight that as the acid eats into the body tissue,

death may be delayed and the chief danger to life is the occurrence of sepsis in the burnt areas.

33. We concur with the reasoning of the learned Trial Judge that qua Kaushalya, the act of the appellant constitutes an offence of murder.

34. It was urged that the appellant did not have any animus against Vikram and Vickey and thus qua them the offence would be to accidently cause burn injuries.

35. The argument is rejected for the reason an accident is an unintentional act and the act causing the injury is unintentional; due to it being negligent. In the instant case, the appellant threw acid intentionally. He may have no specific animus against the 2 unfortunate boys but being aware of their tender age and they being in close proximity with his wife Kaushalya, when appellant threw a jug full of acid on Kaushalya, he has to be fastened with the liability of having knowledge that in all probability the acid could even fall on the 2 unfortunate children. If a man, having intention to kill his wife, throws a jug full of acid on his wife on seeing her sitting in the middle of 2 infants, it certainly would be said that the act is so imminently dangerous even as regards the children that the man ought to know that in all probability even the 2 infants would be the victims of the imminently dangerous act.

36. Thus, qua the death of Vikram and Vickey it must be held that Section 300 Fourthly stands attracted.

37. We find no merit in the appeal and thus dismiss the same, cancelling the bail bond and the surety bonds furnished by the appellant when he was admitted to bail requiring the appellant to surrender and suffer the remaining sentence.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE August 24, 2011 dk