Delhi High Court
Jagdish vs State on 12 November, 2020
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 12.11.2020
+ CRL.A. 283/2017
JAGDISH .....Appellant
Versus
STATE (NCT OF DELHI) ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Kanhaiya Singhal, Advocate.
For the Respondent : Mr. Amit Gupta, APP for State.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The appellant has filed the present appeal impugning a
judgment dated 16.09.2016, passed by the Special Judge-2, NDPS Act
(Central District), Tis Hazari Courts, whereby the appellant was
convicted for committing the offences punishable under Sections
326A and 326B of the Indian Penal Code, 1860 (hereinafter „IPC‟).
2. The appellant also seeks to challenge an order on sentence dated
17.09.2016, whereby he was sentenced to undergo rigorous
imprisonment for a period of ten years along with a fine of ₹10,000
for committing the offence punishable under Section 326A of the IPC
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and in default of payment of fine, to undergo simple imprisonment for
a further period of one month. The appellant was also sentenced to
undergo rigorous imprisonment for a period of five years along with a
fine of ₹10,000 for committing the offence punishable under Section
326B of the IPC and in default of payment of fine, to undergo simple
imprisonment for a further period of one month. Both sentences were
directed to run concurrently.
3. The case of the prosecution is that on 09.09.2014, at about
06:45 a.m., in front of Street no. 42, Beadon Pura, Karol Bagh, New
Delhi, the accused (the appellant herein) threw acid, which he was
carrying in a bottle wrapped with newspaper, on his wife (Smt.
Bimla). At the material time, she was accompanied by her sister-in-
law (bhabhi), who was carrying her minor son (Sunny) aged about
three years, in her arms. The acid also fell on Sunny and he suffered
acid burns. Smt. Bimla suffered grievous hurt, while Sunny suffered
simple injuries. The offence was committed when the petitioner‟s wife
and her sister-in-law were returning from a public lavatory (sulabh
sauchalaya).
4. Information regarding the injured Bimla who was admitted at
Lady Hardinge Hospital with acid burn injuries (MLC No. 47598/14)
and a child named Sunny who was admitted at Kalawati Saran
Children‟s Hospital (MLC No. 192/14) was received at PS Karol
Bagh, at about 8.15 am, on 09.09.2014. The said information was
entered as DD No. 8A. The same was marked to SI Naresh Kumar. He
along with Ct. Anand Kumar reached Lady Hardinge Medical College
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and recorded the statement of the injured Bimla (Ex PW2/A). He sent
the rukka through Ct. Anand to the police station on the basis of which
the FIR in question (FIR no. 623/14, under Sections 326A and 326B
of the IPC) was registered with PS Karol Bagh. According to the
prosecution, the accused ran away after the incident. Efforts were
made to locate him but he could not be found. He was arrested on
28.09.2015 by SI Rajpal when he was produced near Liquor Vend,
Ravi Raj Chowk, Karol Bagh, by his father-in-law Sh. Cheeku and
brother-in-law Sh. Praveen.
5. The accused was charged with offences punishable under
Sections 326A and 326B of the IPC. He pleaded not guilty and the
matter was set down for trial. During the course of the trial, the
prosecution examined twelve witnesses. The defence did not lead any
evidence.
Evidence
6. W/SI Suman, PS Karol Bagh, was examined as PW1. She stated
that on 09.09.2014, she was working as a Duty Officer from 08:00
a.m. to 04:00 p.m. At about 08:15 a.m., she received telephonic
information from Lady Hardinge Hospital regarding burn injuries
suffered by a lady Bimla and a child who had been admitted to the
hospital by her brother Praveen. She entered the said information as
DD No. 8A (Ex PW1/X) and handed over a copy of the same to SI
Naresh. At about 09:50 a.m., Ct. Anand came to PS K. Gate along
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with the original rukka. She got FIR No. 623/14 registered. PW1 was
not cross-examined.
7. Smt. Bimla, the wife of the accused (the appellant), was
examined as PW2 on 11.03.2016. She stated that she married Jagdish
four years ago. She stated that her husband is a drug addict and would
even consume beer etc. and would beat her. She could not recall the
date of the incident, however, she stated that it was two years ago and
at the time, she was residing at her paternal house. She stated that on
that day, at about 06:00 a.m., she along with her bhabhi Santosh were
going to a sauchalaya and at that time, Santosh had her son, Sunny,
aged about five years with her. On their way back, she saw her
husband. He had a bottle wrapped in a newspaper in his hand. The
bottle contained tejab (acid) and suddenly, her husband threw acid on
her, which caused injuries to the left side of her face, right shoulder
and her back. The accused also threw acid on the neck and back of
Sunny who, at that time, was in the lap of her sister-in-law (Santosh),
and fled from the spot. PW2 stated that she, her sister-in-law and the
child Sunny went to Lady Hardinge Hospital for treatment. PW2‟s
brother also reached the hospital. The police officials also reached the
hospital. PW2 correctly identified the accused in court. She stated that
the police officials searched for the bottle but the same could not be
recovered.
8. In her cross-examination, PW2 affirmed that her husband was
married to some other woman prior to his marriage with her. He had
divorced his previous wife through panch. She affirmed having signed
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her statement in the hospital and that she did not sign any documents,
when she had shown the place of occurrence to the police officials.
She affirmed that when the accused threw acid on her, many persons
had gathered at the spot, including local residents. She could not say
whether the police had asked any public persons to join the
investigation. She affirmed that when her husband threw acid on her,
some droplets of the same were also sprinkled on the wall, however,
she was unaware as to whether police officials had scratched the wall
to take a sample of the same. She stated that after she received the acid
injury, she first went to her residence and thereafter, reached the
hospital at about 07:00 a.m.
9. Praveen, the brother of Smt. Bimla (PW2), was examined as
PW4. He stated that his sister was married to Jagdish. He correctly
identified the accused in court. He stated that on 09.09.2014, his sister
was residing at his residence, and had been doing so for two months
prior to that date. She had done so because her husband would
consume liquor and beat her up. He stated that on 09.09.2014, at about
07-07:30 a.m., he was present at his residence when Bimla and his
sister-in-law Smt. Santosh came there and he noticed an acid (tejab)
injury on the left side of Bimla‟s face. There were also acid injuries on
the head and other parts of Sunny‟s body (Smt. Santosh‟s son). Upon
inquiring, he was informed by both that when they were returning
from the sulabh sauchalaya and when they reached in front of Shop
no. 2952, Jagdish (the appellant) had thrown acid on them. At that
time, Smt. Santosh had Sunny in her lap.
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10. In his cross-examination, he stated that no other public person
came to their residence along with his sister and sister-in-law. He
affirmed that there were three acid stains on the clothes of his sister.
They reached Lady Hardinge Hospital at about 08-08:30 a.m. and his
sister was treated and discharged. His statement was recorded at the
hospital. He stated that the police officials did not record the statement
of any other person at the hospital. He affirmed that his sister wanted
to divorce the accused. He affirmed that the police officials did not
seize any clothes of his sister in his presence.
11. Smt. Santosh, the sister-in-law of Smt. Bimla (PW-2), deposed
as PW5. She stated that on 09.09.2014 at about 06-06:30 a.m., she and
her nanad (sister-in-law), Bimla were returning to their residence from
the sulabh sauchalaya. At that time, her son Sunny, aged about three
years, was in her lap. At some distance from the toilet, Bimla‟s
husband appeared and he had something wrapped in a newspaper in
his hand. Suddenly, he threw tejab, from a bottle and the same fell on
the head and near the shoulder of her son. He again threw acid which
fell under the right eye of Bimla (corrected herself to left eye - PW5
could not recall as to which eye the acid fell on) and thereafter,
Jagdish ran away from the spot. She along with Smt. Bimla came to
her husband, where PW5 informed her devar (brother-in-law)
Praveen, who took them to Lady Hardinge Hospital. PW5 correctly
identified the accused in court. In her cross-examination, she affirmed
that she and Smt. Bimla reached their house after the occurrence of the
incident at about 06/07:00 a.m. At that time, her mother-in-law, father-
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in-law, nanad and brother-in-law were present at the house. She did
not know if the police officials had recorded the statement of anyone
at her house. Her statement was recorded by the police officials at
Kalawati Hospital (where she was directed to take her son by the
doctors at Lady Hardinge Hospital). She affirmed that Smt. Bimla had
been residing at her house for about two and a half months prior to the
said incident. PW5 did not know whether Smt. Bimla wanted to
divorce Jagdish. She stated that no public persons had gathered at the
spot during the occurrence of the alleged offence. She affirmed that
the police officials had visited her residence two-three times. She
affirmed that the clothes worn by Smt. Bimla, which had acid stains,
were not produced before the police officials.
12. SI Naresh Kumar, PS Karol Bagh, deposed as PW10. He stated
that on 09.09.2014, he was serving at PS Karol Bagh. On that day, he
received a copy of DD No. 8A and thereafter, he reached Lady
Hardinge Medical College Hospital along with Ct. Anant Kumar. At
the hospital, he came to know that Smt.Bimla was admitted in Lady
Hardinge Medical College and a child namely Sunny, aged about three
years, was admitted in Kalawati Saran Hospital. She was declared fit
by the doctor to give a statement. Sunny‟s MLC mentioned the nature
of the injury suffered by him as "simple". He recorded the statement
of Smt. Bimla. He stated that Santosh (PW5) produced a t-shirt of the
victim Sunny, which had some holes. The same was kept in a white
cloth, which was sealed with the seal of NK. He stated that he along
with Ct. Anant Kumar, Santosh and Praveen returned to the spot.
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While he was conducting investigation, Smt. Bimla also reached the
spot. At her instance, PW10 prepared the site plan (Ex. PW10/B).
PW10 stated that he made efforts to arrest the accused from Kota,
Rajasthan and Gurgaon, Haryana but he could not be arrested.
13. In his cross-examination, PW10 affirmed that he reached Lady
Hardinge Hospital at about 08:40 a.m. along with Ct. Anand and at
about 09:00 a.m., they reached Kalawati Saran Hospital where the
child was admitted. At about 09:10 a.m., he recorded the statement of
Smt. Bimla at Lady Hardinge Hospital. He affirmed that he had sealed
Sunny‟s t-shirt at the hospital when it was shown to him. He stated
that despite search, neither the bottle was traceable during the spot
investigation nor any stains of acid were traceable at the spot.
14. HC Vikas was examined as PW3. He testified that on
28.09.2015, he was posted at PS Karol Bagh. He stated that on that
date, at about 07:14 p.m., he had received information regarding a
quarrel at Gaffar Market in front of Ravi Raj Kulfi Wala. He stated
that he recorded the said information as DD No.30A (Ex.PW3/A).
15. Ct. Nahar Singh was examined as PW7. He testified that on
28.09.2015, he was serving at PS Karol Bagh and on that evening, he
had accompanied HC Ramesh to Ravi Chowk on receipt of a call
regarding a quarrel. He stated that he found Cheeku Ram and Praveen
present there. Both of them had apprehended Jagdish and they
represented that he had thrown acid (tejab) on Smt. Bimla.
Accordingly, HC Ramesh arrested the appellant. Ct. Nahar Singh also
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identified the appellant in court. He further identified his signatures
on the arrest memo (Ex.PW7/A) and the appellant‟s personal search
memo (Ex.PW7/B). He stated that thereafter, they brought the accused
(the appellant) to the PS and he was sent to the hospital for his medical
examination. He further stated that HC Ramesh Chand recorded his
statement.
16. HC Ramesh Chand was examined as PW12. He testified that
on 28.09.2015, he was serving at PS Karol Bagh. While he and Ct.
Nahar Singh were patrolling in the area, they received a call from the
Control Room regarding a quarrel near a liquor vend at Ravi Raj
Chowk. This information was received at about 07:15 p.m. He stated
that he and Ct. Nahar Singh reached the spot. On reaching there,
Praveen and his father Cheeku produced the accused Jagdish, whom
they had apprehended. He stated that they had recorded their
statements and arrested the accused Jagdish. He deposed that he
prepared the arrest memo and also conducted the personal search of
the accused. Subsequently, the accused was medically examined at
Lady Hardinge Hospital and thereafter, he was lodged in the lock-up.
17. Dr. Ramya Pemula was examined as PW9. She stated that she
was working as a Senior Resident at RML Hospital. She testified that
she had examined the record of Bimla but did not remember the date
on which she had done so. She confirmed that she had opined that the
injury suffered by Bimla was grievous in nature. She testified that the
said medical opinion (Ex.PW9/A) bears her signature. She testified
that there was a facial scar with ectropion on the left upper eyelid of
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Bimla which was a result of an acid / chemical burn and consequently,
she was unable to close her left eye completely. PW9 was not cross-
examined.
18. Dr. Amit Modi was examined as PW11. He testified that on
09.09.2014, he was serving at Kalawati Saran Hospital and, that he
had medically examined Sunny, who was about three years old. He
identified his signatures on the MLC (Ex.PW11/A). He further
testified that on examination he had found the following injuries on
the child: "(1) simple burn injuries over left side of neck" and "(2)
simple burn injuries over left side of skull". He stated that both the
aforesaid injuries were due to acid burns. He testified that after
examining the child, he had referred him to Pediatric Surgery
Department for further evaluation and treatment.
19. The statement of the accused (the appellant) was recorded under
Section 313 of the Cr.PC. He affirmed that his wife Bimla had been
residing at her paternal house since July, 2014 and the remaining
allegations against him by his wife were wrong. He denied having
visited the spot of the occurrence on the date of the incident and
denied all other allegations of throwing acid, as well. He stated that all
the prosecution witnesses had deposed falsely and this was a false case
against him.
Submissions
20. Mr. Kanhaiya Singhal, learned counsel appearing for the
appellant challenged the impugned judgment dated 16.09.2016 and
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order on sentence dated 17.09.2016, essentially, on the following
fronts. He contended that that entire case of the prosecution rests on
the uncorroborated testimonies of Smt. Bimla and Smt. Santosh and
the testimony of Praveen (PW4) ought to be considered as hearsay
evidence. He submitted there are six aspects, which the prosecution
failed to prove and are fatal to the prosecution‟s case. First, that the IO
did not ask the doctor treating the injured persons to seize/preserve
body tissue of the injured persons to prove that their injuries were
caused by acid. Second, that no traces of acid were found on the crime
scene and that the crime team was not summoned to the spot. Third,
that sincere efforts were not made to recover either the bottle which
allegedly contained the acid nor the newspaper allegedly wrapped
around the said bottle. Fourth, no FSL report was furnished to show
that the injuries caused to the victims were caused by a corrosive
substance/acid. Fifth, the clothes of Smt. Bimla were not seized; even
though the minor victim‟s t-shirt was seized, the same was not sent to
FSL for examination. And, sixth, that no independent witnesses were
examined even though PW2, in her examination, deposed that public
persons were present at the spot of the occurrence.
21. Further, Mr. Singhal submitted that there are inconsistencies,
contradictions and improvements in the testimonies of the witnesses
and thus, the impugned judgment and order on sentence ought to be
set aside. He stated that PW2 had stated that her statement was
recorded and signed at the hospital, while PW4 stated that only he
gave a statement at the hospital and no one else did. He pointed out
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that PW5 had testified that public persons had not gathered where the
offence had taken place but PW2 stated that a lot of public persons
had gathered at the spot.
22. Mr. Singhal further stated that PW2, PW4 and PW5 all stated
that PW2 and PW5 had come home after the attack. He contended that
this conduct does not inspire confidence as someone who has suffered
an acid attack would not be in a position to even walk due to severe
pain and suffering. He also states that there is absence of a scaled site
plan and the rough site plan shows that place of the alleged incident to
be near Gaffar Market/Beadon Pura, which are densely populated
areas, however, no independent witnesses had joined in the
proceedings. He further contended that the MLC of the minor victim
(Ex. PW11/A) records the history as „Acid Attack‟ and that it would
appear as if in the first blush, a person had narrated the incident as
acid burns and modified the same to reflect an acid attack.
23. Another aspect which Mr. Singhal put forth before the Court
was that the appellant was not afforded a fair trial and an effective
opportunity to defend himself. He argued that the testimony of PW11
went unchallenged as there was no cross-examination. PW11‟s
evidence was recorded on 16.08.2016 and on that date, the counsel for
the accused was not present. However, the Trial Court recorded "Nil.
Opportunity Given." and proceeded with the case. Further, PW1,
PW9, PW11 and PW12 were not cross-examined and that the cross-
examination of other witnesses was done very poorly.
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Reasons and Conclusion
24. The first and foremost question to be addressed is whether the
prosecution has established that the injuries suffered by the victims
(Bimla and Sunny) were due to acid thrown at them as alleged. Mr.
Singhal had contended that the prosecution had not collected any
corroborative evidence to establish the same and the prosecution's case
rested entirely on the testimony of the victim, Bimla and her sister-in-
law, Santosh. He had emphasized that the treating doctors had not
preserved the body tissue of the injured persons to establish that the
injuries were caused by acid and no traces of acid were found at the
scene of the crime. He further stated that neither the bottle which
contained the acid nor the newspaper in which the bottle was wrapped,
had been recovered. Further, he also stated that the clothes of the
victim Bimla were not seized and the clothes worn by the child
(Sunny) were also not sent to FSL for examination.
25. The aforesaid contentions are unpersuasive. In this case, there is
no doubt whatsoever, that the injuries suffered by victims (Bimla and
Sunny) were caused due to acid burns. Bimla (PW2) had testified that
the appellant had thrown acid on her and the child Sunny, while they
were returning back from the public lavatory. Dr. Ramya Pemula
(PW9) had testified that the injuries suffered by Bimla were a result of
acid/chemical burns.
26. Dr. Amit Modi (PW11) had unequivocally testified that the
injuries suffered by Sunny were due to acid. The MLC of Smt. Bimla
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(PW8/A) also indicates that she had reported that acid was thrown.
The MLC also indicates that she reported a burning pain over her face
and back and that she had injuries over the left side and multiple small
injuries over her back due to chemical burns. The MLC of the victim
Sunny (Ex.PW11/A) also records history of acid attack. The evidence
of the medical doctors (PW9 and PW11) leaves no room to doubt that
the victims had suffered acid/chemical burns. PW2, who is the victim
also stated in unambiguous terms that she and Sunny were injured as a
result of the accused throwing acid on them. Her testimony regarding
the incident is wholly consistent with the testimony of PW5 (Santosh),
who was accompanying her at the material time. Thus, the contention
that the prosecution‟s case rested only on the uncorroborated
testimonies of PW2 and PW5, is erroneous.
27. Having stated the above, this Court is also of the view that the
testimony of PW2 did not require any corroboration. It is seen that her
testimony is wholly consistent with her statements recorded earlier.
She is an injured witness and it is well settled that the testimony of an
injured witness is required to be believed unless there are reasons to
doubt the same. This Court is of the view that PW2 is a wholly
reliable witness and the appellant could be convicted solely on her
testimony. However, it is seen that her testimony is also corroborated
by other evidence as obtained in this case. The testimony of PW5 is
wholly consistent with her testimony. The MLC as well as the
testimony of the treating doctors also supports the case of the
prosecution.
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28. It is also relevant to keep the timelines in mind. The incident is
stated to have occurred in the early hours (around 6:45 a.m.) on
09.09.2014. The victims had proceeded to their home and thereafter,
immediately to the hospital. The information from the hospital was
received at PS Karol Bagh at about 08:15 a.m. The concerned police
officials had proceeded to the hospital and the statement of the victim
Bimla was recorded. The rukka was sent back immediately and the
FIR was registered at 09:50 a.m. The entire timelines are consistent
with the allegation that the acid was thrown on the victims at about
06:45 a.m.
29. The contention that the conduct of the victims in going back to
their residence after the attack and not going to the hospital
immediately raises doubts as to the case set up by the prosecution, is
wholly unmerited. It is relevant to note that the victim Bimla along
with her sister-in-law and her child were returning back to their
residence from a public lavatory. It would be natural for them to rush
to their residence to try and address the injuries. In the present case,
they had done so and had immediately proceeded to the hospital. The
contention that PW2 would not be able to walk after the acid attack is
without any substance or basis.
30. The contention that the MLC of Sunny had recorded the injury
as acid burns, which was scored of and noted as an acid attack raises
doubts as to the prosecution‟s case, is also, unpersuasive. PW5
(Santosh) who was the victim‟s mother had obviously reported the
said injuries as acid burns caused by an attack and therefore, the MLC
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records the same as an acid attack. The scoring off of the word
„burns‟ in the MLC does not raise any doubt as to the case whatsoever,
given the evidence obtained in the matter.
31. The contention that there are material inconsistencies in the
testimonies of the witnesses is also unpersuasive. The statement of
PW2 was recorded at the hospital. PW2 as well as PW10 had testified
to the aforesaid effect. PW4 had also stated that he had given his
statement in the hospital. In his cross-examination, PW4 had clarified
that the statement of her sister (Bimla) was also recorded at the
hospital. The inconsistency in the statement of PW2 and PW5, as to
the number of public persons that had gathered at the spot, is also not
material and does not to raise any doubts as to whether the appellant
had committed the crime, for which he has been convicted.
32. Lastly, it was submitted by Mr. Singhal that the appellant was
not afforded a fair trial inasmuch as the testimony of most of the
witnesses remained unchallenged, as they were not cross-examined.
The fact that the witnesses had not been cross-examined does not
render the trial unfair. Undisputedly, the appellant was given full
opportunity to cross-examine all the witnesses and to test the veracity
of their testimonies.
33. Mr. Singhal had stated that the testimony of PW11 went
unchallenged as the appellant‟s counsel was not present there. This
contention is also unmerited as the record shows that opportunity to
cross-examine PW11 was given, however, he was not cross-examined.
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If the appellant‟s counsel was of the view that PW11 was required to
be cross-examined, it was always open for the appellant to move an
appropriate application before the Trial Court but no such application
was moved. Even if it is accepted that the appellant‟s counsel was not
present on the particular date (assuming that he wasn‟t), the same did
not vitiate the trial. It is obvious that the appellant found no reason to
challenge the testimony of PW11. This Court does not find any reason
to discount the testimony of PW11.
34. As pointed out by Mr. Singhal, it was apposite for the
investigation agency to have sent the clothes worn by the victim to
FSL and also to have conclusively ascertained the acid/chemical
thrown on the victims. However, their failure to do so in the given
facts of this case, does not raise any doubt that the appellant is guilty
of the crime for which he has been convicted.
35. In view of the above, the appeal is unmerited and is,
accordingly, dismissed.
VIBHU BAKHRU, J
NOVEMBER 12, 2020
RK
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