Ajay Bharti @ Pandit vs State
2014 Latest Caselaw 4776 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Date of Decision: September 24, 2014
+                            CRL.A. 852/2014
         AJAY BHARTI @ PANDIT                              ..... Appellant
                 Represented by:          Ms.Saahila Lamba, Advocate

                                          versus

         STATE                                              ..... Respondent
                        Represented by:   Ms.Aashaa Tiwari, APP
                                          Insp.Jerawar Singh, PS Prashant
                                          Vihar

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

1. Bimla @ Rani was brought to the casualty of Baba Saheb Amedkar Hospital, Rohini by an unknown rickshaw puller at 10:10 PM on January 20, 2006 where she was attended to by Dr.Deepti Bhalla PW-8. She drew up Bimla's MLC Ex.PW-8/A recording therein that history of injuries given by the victim was 'sexual assault with burn injuries over the body'. She noted that the patient was conscious and oriented. The pulse was 100 per minute and B.P. 100/60 mmHg. After giving primary medical aid she referred the patient to Safdarjung Hospital, which has a speciality wing concerning burn injuries.

2. HC Khiladi Ram PW-16 was on duty at Baba Saheb Ambedkar Hospital and he conveyed the said information to the Duty Officer

Ct.Ravinder Singh PW-7, PS Prashant Vihar who recorded DD NO.67B Ex.PW-7/A. One Ravi whose name was given by Bimla with mobile number 9891150037 was contacted by him. He informed Ravi of Bimla being admitted. As per him Bimla told him that appellant Ajay Bharti had thrown acid on her body.

3. SI Shashi Lata PW-30 to whom DD No.67B was entrusted reached Baba Saheb Ambedkar Hospital where she met Insp.Ram Mehar Singh PW- 18, the SHO of the police station. She learnt that Bimla had been shifted to Safdarjung Hospital. On reaching there she found that Bimla had in fact been admitted in the emergency ward of Ram Manohar Lohia Hospital and thus she went to said hospital. Bimla being unfit to make a statement she made the endorsement Ex.PW-30/A beneath DD No.67B for an FIR to be registered for the offence punishable under Section 376/307 IPC, in view of what was written in the MLC. The FIR Ex.PW-2/A was recorded. She went back to Baba Saheb Ambedkar Hospital where Ct.Khiladi Ram handed over clothes of Bimla to her which she seized as per seizure memo Ex.PW-16/A and she recorded Khiladi Ram's statement in which he disclosed Bimla having named Ajay Bharti as the one who poured acid on her. SI Shashi Lata kept on visiting Dr.Ram Manohar Lohia Hospital each day till January 24, 2006 on which day she recorded Bimla's statement Ex.PW-14/A in the presence of Ravi Verma PW-14.

4. Ravi Kumar Verma PW-14 claimed that when he learnt that Bimla was brought to Baba Saheb Ambedkar Hospital with burn injuries he went there and met Bimla who told him that Ajay Pandit had thrown acid on her.

5. Thus, the prosecution armed itself with three dying declarations made by Bimla who unfortunately died on January 27, 2006 i.e. 7 days after

receiving the burn injuries.

6. The post mortem report Ex.PW-28/A authored by Dr.Upinder Kishore PW-28 notes that 40% of the total body surface of Bimla was burnt and there was decomposition of the skin and the muscle. Sepsis had set in which was the cause of the death. The burn injuries were produced, as written in the report, by corrosive acid.

7. Pappu Sahni @ Bengali PW-5 himself went to the Investigating Officer on February 03, 2006 and claimed that on the day of the incident i.e. January 20, 2006 at about 9:00 PM the appellant had made an extra judicial confession to him.

8. The motive to the crime was the deceased having left her husband Lal Singh PW-3 and residing with Ravi PW-14, which infuriated the appellant because he had wanted to marry Bimla. As per Ravi he had seen the deceased in company of the accused between 7:00 to 8:00 PM on January 20, 2006.

9. Being arrested on February 02, 2006, the appellant was medically examined by Dr.Kuldeep Singh PW-17 who wrote on the MLC Ex.PW- 17/A that appellant had acid burns on his right wrist. The next day on February 03, 2006 the appellant was examined by Dr.Upender Kishore PW- 28 who gave an opinion Ex.PW-28/D that the acid burns were about two weeks old.

10. Vide impugned decision dated May 30, 2014, the appellant has been convicted for murdering Bimla by throwing acid on her and we find that the learned Trial Judge has held a motive to be established, extra judicial confession to have been made and three dying declarations being made. Ravi has been believed on the last seen evidence. The learned Trial Judge

has also noted that MLC Ex.PW-17/A authored by Dr.Kuldeep Singh PW- 17 of appellant Ajay Bharti records that examined at 11:35 PM on February 02, 2006 after he was arrested at Dr.Baba Saheb Ambedkar Hospital he had acid burns over right wrist. To have confirmation as to how old were the corrosive acid burns, on February 03, 2016 appellant was produced before Dr.Upender Kishore PW-28, who had conducted post-mortem on the dead body of Bimla, for his opinion, on the burns on the appellant. His report Ex.PW-28/D opines that the wounds on Ajay Bharti have been produced by corrosive acid and are of about two weeks duration.

11. Having perused the testimony of Pappu Sahni @ Bengali PW-5 we find that he is not a credible witness for the reason he claims that the appellant made to him a confession at around 9:00 PM on January 20, 2006 but chose to volunteer the information on February 03, 2006.

12. Thus, the learned Trial Judge has erred in accepting the testimony of Pappu Sahni.

13. It may be true that the testimony of Ravi Kumar Verma PW-14 brings out traces of his animosity against the appellant, but that would only mean that we have to scrutinize his testimony with care.

14. Learned counsel for the appellant attacks the credibility of Ravi Kumar Verma who has admitted during cross examination that he had a quarrel with the appellant on December 11, 2005 for which DD No.26 B was registered at PS Sultan Puri. Learned counsel points out to us that it is surprising that Ravi Kumar Verma reached Baba Saheb Ambedkar Hospital.

15. There is no reason for learned counsel to express any surprise on Ravi reaching Baba Saheb Ambedkar Hospital because of the testimony of HC Khiladi Ram PW-16 who has deposed that Bimla gave him Ravi's name and

mobile number 9891150037 and requested him to call Ravi. He was the one who gave information to Ravi. This testimony of HC Khiladi Ram has not even been attacked.

16. Assuming Ravi Kumar had a motive to use the opportunity to grind his axe and falsely implicate appellant, but HC Khiladi Ram would have no such motive. As we have noted above the MLC of Bimla shows that she was conscious and oriented when brought to Baba Saheb Ambedkar Hospital. She obviously told the first police officer who met her as to who threw acid on her. The testimony of HC Khiladi Ram evinces that Bimla made the dying declaration to him before Ravi Verma reached the hospital.

17. SI Shashi Lata PW-30 has recorded the dying declaration of Bimla on January 24, 2006, but we find that she has not obtained any fitness regarding Bimla to have made the statement Ex.PW-14/A. We find that Ravi Verma was present when the statement was recorded and he has put his signatures at point A.

18. There is thus merit in the argument that the possibility of Ravi Verma tutoring Bimla to make the statement or winning over SI Shashi Lata to wrongly record the statement looms large in the realm of reality. The reason being that the slightest of taint in a dying declaration which raises an eye brow must lead the Court to adopt the precautionary principle or the principle of caution not to accept such dying declaration in a case where capital punishment can be inflicted.

19. We would thus be left with a dying declaration proved to have been made to HC Khiladi Ram and appellant's MLC Ex.PW-17/A, which is a highly incriminating document because it shows that after he was arrested on February 02, 2006, being got medically examined, acid burns were found

on the right wrist of the appellant. Further, the opinion Ex.PW-28/D also brings out that the appellant had suffered corrosive injuries with acid about two weeks prior to February 03, 2006, and this takes us to the date January 20, 2006 when Bimla was brought to Baba Saheb Ambedkar Hospital with acid burn injuries. We highlight that when the incriminating circumstances were put to the appellant he gave no explanation for the same. He simply denied the same. (Refer questions 53 and 54)

20. We thus hold that there is sufficient evidence to hold that it was the appellant who threw acid on Bimla. The motive has also been proved because as per Ravi Kumar the appellant was of a suspicious nature and suspected the deceased of having relations with him, and as per the dying declaration Ex.PW-14/A, the cause was the deceased rejecting the marriage proposal by the appellant. We have ignored the dying declaration for the reasons given above, but would note that there is no conflict in the motive emerging because concededly Bimla had left her husband PW-3 and was living with somebody else. That somebody else had to be Ravi because it was his mobile number which Bimla gave to HC Khiladi Ram as the person to be contacted. Thus, appellant being infatuated with Bimla not liking she living with Ravi could well be the motive.

21. It is then urged that intention to cause Bimla's death cannot be attributed to the appellant and at best it would be a case of an offence punishable under Section 304 Part II IPC for the reason Bimla died after 7 days of the incident and the cause of death was sepsis. Learned counsel for the appellant cites a Division Bench decision of this Court dated December 02, 2008 in Crl.A.No.496/2003 Uday Singh Vs. State, wherein in a somewhat similar facts a young widow who had spurned Uday Singh's

advances was retaliated upon by Uday Singh. He threw acid on the unfortunate victim. The victim died a few days after due to sepsis. The Division Bench noted a few decisions, and we highlight that all of them concerned being burnt by using a flammable liquid such as kerosene oil. The said decision was followed by another Division Bench of this Court in its judgment dated October 22, 2009 in Crl.A.No.184/1996 Ram Niwas Vs. State where acid was used.

22. But neither decision has noted the jurisprudence concerning burn injuries caused by a corrosive substance such as acid.

23. If small quantity of flammable liquid is thrown on a person and then set on fire resulting in less than 40% of the body being burnt, chances of death are very bleak and it would be a case where one could say that the intention was of causing such bodily injury as is likely to cause the death and not of committing the act knowing that it is so imminently dangerous that it must in all probability cause death.

24. 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 organs 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.

25. 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.

26. We thus dismiss the appeal.

27. Two copies of the decision shall be sent to the Superintendent Central Jail Tihar, one for his record and the other to be handed over to the appellant.

28. TCR be returned.

Crl.M.B.No.10084/2014 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE

SEPTEMBER 24, 2014 mamta