Mahesha vs State By Malebennur Police
2021 Latest Caselaw 2896 Kant

                            1

                                                   R
   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF JULY, 2021

                      PRESENT

         THE HON'BLE MR. JUSTICE B. VEERAPPA

                        AND

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.512/2016(C)

BETWEEN:

MAHESHA
S/O JATTEPPA,
AGED ABOUT 32 YEARS,
KONANATALE VILLAGE,
HONNALI TALUK,
DAVANAGERE DISTIRCT - 577017.
                                         ...APPELLANT

(BY SRI S G RAJENDRA REDDY, ADVOCATE)

AND:

STATE BY MALEBENNUR POLICE
DAVANAGERE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560001
                                        ...RESPONDENT

(BY SRI S.RACHAIAH, HCGP)

                        *****
     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED
                               2



25.02.2016 AND SENTENCE DATED 26.02.2016 PASSED BY
THE II ADDL. DIST. AND S.J., DAVANAGERE IN
S.C.NO.86/2014 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 326(A) AND 307 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 05.07.2021, COMING ON FOR
PRONOUNCEMENT      OF    JUDGMENT,     THIS   DAY,
B. VEERAPPA J., DELIVERED THE FOLLOWING:


                       JUDGMENT

The accused filed the present criminal appeal against

the impugned judgment of conviction and order of sentence

dated 25.02.2016 made in S.C.No.86/2014 on the file of the

II Additional District & Sessions Judge, Davangere sentencing

him to undergo life imprisonment and to pay fine of Rupees

Ten Lakhs with default clause for the offence punishable

under the provisions of Section 326A and sentencing him to

undergo life imprisonment with fine of Rs.50,000/- for the

offence punishable under Section 307 of IPC with default

clause.

I. FACTS OF THE CASE

2. The case of the prosecution is that, initially, the

accused has made proposal to marry the victim-PW.8 and

her family members did not give consent for the same,

thereby, the accused felt disgusted and with an intention to

take revenge on her, he decided that she should not marry

anyone else and to disfigure her face or to take her life, on

31.01.2014 at about 4.40 p.m., when PW.8 was proceeding

on public road situated near Malladara Gowramma house

along with PW.3-Raghu, the accused came on his motorcycle

bearing registration No.KA 17/EL 5938 with an intention to

disfigure her face so as to prevent her from marrying

anybody, he threw acid on her face, back, hands and caused

grievous corrosive injuries and thus, disfigured her face and

body. During the acid attack on PW.8-the victim, acid also

fell on PW.3-Raghu and he also sustained corrosive injures

on his face and head and thus, the accused caused corrosive

injuries to both PW.8 & PW.3.

3. Based on the complaint lodged by PW.11-

Rangappa-the brother of the victim, the Jurisdictional Police

registered Cr.No.24/2014 under the provisions of Sections

326A, 326B and 307 of IPC and after investigation, filed

charge sheet against the accused for the aforesaid offences.

4. After committal of the matter, learned Sessions

Judge secured the presence of the accused and framed

charges on 21.01.2014 under the provisions of Section 307,

326A and 326B of IPC against the accused and read over and

explained the charges to the accused in the language known

to him. The accused pleaded not guilty and claimed to be

tried.

5. In order to prove the guilt of the accused, the

prosecution examined in all PW.1 to PW.24 and marked the

material documents as Ex.P1 to Ex.P24 and material objects

as MOs.1 to 8. An exercise note book was marked as Ex.D1

by defence. After completion of the evidence of the

prosecution witnesses, the statement of the accused as

contemplated under Section 313 of Cr.P.C was recorded and

the accused denied all incriminating circumstances adduced

against him by the prosecution witnesses. He has not

adduced any evidence except marking Ex.D1.

6. Based on the aforesaid material on record,

learned Sessions Judge framed two points for consideration

as under:

"(1) Whether the prosecution prove its case against the accused beyond all reasonable doubt that, on 31.1.2014 at about 4.40 PM when CW.8 Kavitha D/o Hanumanugowda, alongwith CW.9 Raghu S/o.Nayaruj, was proceeding on a public road situated near the house of Malladura Gowramma.

     situated     at    Kokkunur village,        Hariharu
     latuk,     thus     accused        came     on      his
     motorcycle bearing Reg. No.KA 17/ EL

5938, and he with an intention to disfigure her face and also to prevent her from marrying anybody, as she refused to marry him, he threw acid on her face, back, hands and caused grievous corrosive injuries to her, knowingly that such injuries are likely to cause death of CW 8 and thus he has made an attempt on the life of CW.8, and if by that act if he had caused her death, then he would have been guilty of murder, and thereby committed an offence punishable under Sec: 307 of IPC?

2. Whether the prosecution further proves beyond all reasonable doubt that, on the above said date, time and place, this accused with an intention to disfigure the

face of CW.8 Kavitha and also to prevent her from marrying anybody, as she refused to marry him, he threw acid on her face, back, hands and also on the body of CW.9 Raghu and caused simple and grievous corrosive injuries to them, and thereby committed the offences punishable under Sec 326 (A) & (B) of IPC?"

Considering both oral and documentary evidence on

record, learned Sessions Judge answered both the points in

affirmative holding that the prosecution has proved beyond

reasonable doubt that on 31.01.2014 at about 04.40 p.m.,

when PW.8-the victim was proceeding alongwith PW.3-Raghu

on public road near the house of Malladara Gowramma

situated near Kokkanur village, the accused came on his

motorcycle bearing registration No.KA 75/EL 5938 in order to

disfigure her face and also to prevent her from marrying

anybody, as she refused to marry him, he threw acid on her

face, back, hands and caused grievous corrosive injuries to

her, knowingly that such injuries likely cause death of PW.8

and thus, he has made an attempt on the life of PW.8. If by

that act, if he had caused her death, then he would have

been guilty of murder and thereby, committed an offence

under Section 307 of IPC and further, recorded a finding that

the accused with an intention to disfigure the face of the

victim-PW.8 and also prevent her from marrying anybody, he

threw acid on her face, back, hands and also on the body of

PW.3-Raghu and caused corrosive injuries by acid and

therefore, committed an offences punishable under the

provisions of Section 326A of IPC. Accordingly, learned

Sessions Judge by impugned judgment and order of sentence

proceeded to convict the accused for the offences punishable

under the provisions of Section 326A of IPC and sentenced to

undergo life imprisonment and to pay a fine of Rupees Ten

lakhs in default of payment of fine, to undergo simple

imprisonment for five years and imprisonment for life with

fine of Rs.50,000/- in default to undergo simple

imprisonment for one year for the offence punishable under

Section 307 of IPC. Hence, the present appeal.

7. We have heard the learned counsel for the

parties.

II ARGUMENTS OF LEARNED COUNSEL FOR THE APPELLANT/ACCUSED

8. Sri.S.G.Rajendra Reddy, learned counsel for the

appellant contended with vehemence that the impugned

judgment and order of sentence passed by the trial Court

convicting the accused under the provisions of Section 326A

and 307 of IPC is erroneous and contrary to the material on

record and the same is liable to be set aside. He would

further contend that all the witnesses including the victims

i.e., PW.8 and PW.3 have stated that the appellant at the

time of the incident was wearing helmet which covers the

entire face and his identification came to know only after

watching TV Channel. Therefore, involvement of the accused

in the alleged incident on PW.8 is highly doubtful. Whether

the accused has thrown the acid on the victim or not is

doubtful and, the learned Judge relying on inconsistence

evidence of close relatives came to the erroneous conclusion

that the prosecution has proved the case beyond all

reasonable doubt. On that ground alone, the impugned

judgment and order of conviction is liable to be set aside.

He further contended that the trial Court has not made

any evaluation, analysis or scrutiny of the evidence in a

proper perspective and objectively; thereby, proceeded to

pass erroneous judgment and order of conviction. Impugned

Judgment is contrary to the evidence and material on record

and the same cannot be sustained. He further contended that

the identification of the accused is not proved beyond the

reasonable doubt by the prosecution.

9. Learned counsel for the appellant contended that

the evidence of PW.5 and PW.15 who were independent

witnesses to the incident have not supported the case of the

prosecution. There is no other corroboration to the evidence

of the injured-PW.8. Only on the basis of the statement of

PW.8, the order of conviction cannot be sustained. He would

further contend that PW.13, who alleged to have been sold

the acid to the accused has not supported the case of the

prosecution. PW.18, the doctor who examined the victim

deposed that as per Ex.P9-wound certificate, he has noticed

six corrosive injuries.

10. He further contended that there is a delay in

lodging the complaint and forwarding the FIR to the learned

Magistrate and such delay has been continuously used by the

complainant and others to implicate the accused in a false

case. He would further contend that the evidence of the

injured and eyewitnesses runs contrary to each other,

thereby, the trial Court believing their evidence came to the

wrong conclusion that the accused is guilty of the offences

charged. The entire judgment is based on the "assumptions

and presumptions" without there being any substantial

evidence on record. Alternatively, he contended that taking

into consideration the peculiar facts and circumstances of the

case and in the absences of any positive evidence, he sought

for reduction of sentence to minimum sentence permissible

and sought to allow the appeal.

III. ARGUMENTS OF LEARNED HCGP FOR THE RESPONDENT-STATE

11. Per contra, Sri.Rachaiah, learned HCGP while

justifying the impugned judgment and order of conviction

passed by the trial Court contended that PW.8 in Para.3 of

her statement specifically stated on oath that on 31.01.2014

at about 9.30 a.m., as usual she was going to school and

after attending the school, she was coming back at 4.30

p.m., towards her maternal uncle's house alongwith PW.3-

Raghu by walk. At about 4.40 p.m., when they reached near

Kannanur village near Gowramma's house. At that juncture,

the accused came from opposite side and told the victim to

stop and has poured acid from a bottle to a glass and threw

on her. Though victim had closed her face with her hands,

yet acid fell over her head, entire face, two hands including

PW.3-Raghu. Thereby, she was screaming. By that time, the

adjoining neighbors Anusuyamma, Yellamma and Kotrappa

took the victim and PW.3 to the Government Hospital for

first-aid.

12. He further contended that PW.13, who sold acid

to the accused has specifically deposed on oath that on the

request made by the accused that he has to put acid to the

roots grown in the jetty in front of his house, he has given

one bottle of acid. Thereafter, when the police came to the

garage alongwith accused, he has admitted that he has given

acid in a bottle to the accused and thereby, he came to know

that the accused thrown acid on the victim. In his cross-

examination, he has denied the suggestion that he has not at

all sold the acid to the accused.

13. Learned HCGP would contend that Ex.P21, the

FSL report clearly depicts the items sent to the examinations,

which are as under:

      i)      One glass cup
      ii)     One quarter bottle
      iii)    One saree
      iv)     One saree petycoat
      v)      One shirt
      vi)     One school bag
      vii)    One quarter bottle

The presence of sulphuric acid was detected in article Nos.1

to 6 and sample found in article No.7 is concentrated

sulphuric acid. Prosecution witnesses including the victim-

PW.8 and PW.3, deposed that the accused has thrown acid

on the victim and PW.3. He would further contend that

learned Sessions Judge considering both oral and

documentary evidence on record has rightly come to the

conclusion that the accused is involved in throwing acid on

the face of the victim and other parts of her body so as to

attract the provisions of Sections 307 and 326A of IPC.

Therefore, he sought to dismiss the appeal.

IV. POINTS FOR DETERMINATION

14. In view of the rival contentions urged by the

learned counsel for the parties, the points that would arise

for our consideration in the present appeal are:

(i) "Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Section 307 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.50,000/- with default clause ?"

(ii) "Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Section 326A of IPC and sentencing him to undergo imprisonment for life and to pay a fine off Rs.10,00,000/- with default clause in the facts and circumstances of the case?"

15. We have given our thoughtful consideration to

the arguments advanced by the learned counsel for the

parties and perused the entire material including the original

records carefully.

V. EVIDENCE ADDUCED BY THE PROSECUTION WITNESSES AND THE DOCUMENTS RELIED UPON

16. This Court being the Appellate Court, in order to

re-appreciate the entire material on record, it is relevant to

consider the evidence of the prosecution witnesses and

documents relied upon:

(i) PW.1-Lakshmappa deposed that he knows

the house of Malladara Gowramma which is

situated at Anjaneya temple road and the

victim is also known to him and she is

working as teacher in the Kokkanur village.

He further deposed that the accused has

thrown acid on the victim. He is the panch

witness to the spot mahazar-Ex.P1 and he

identified MOs.1 and 2 i.e., one glass bottle

and one glass cup respectively. He is also

witness to seizure mahazar-Ex.P2 and

identified MOs.3 to 5 i.e., one saree, one

petycoat and one shirt and supported the

case of the prosecution.

(ii). PW.2-H.Jilanisab deposed that PW.13-Salim

known to him and he owned a battery shop

about one year earlier. When he went to

battery shop of the Salim, at that time, the

police came there alongwith one bottle. He

is the panch witness to Ex.P3-Seizure

mahazar and he identified MO.7-bottle and

supported the prosecution case.

(iii). PW.3-Raghu, the victim boy who stated that

he is studying in first standard. On the date

of the incident, he was with his teacher-

PW.8 and the accused has thrown acid on

him and his teacher. Due to the acid attack

on his teacher, acid also fell on him and his

teacher sustained serious corrosive injures

and he also sustained serious corrosive

injuries and supported the prosecution case.

(iv). PW.4-Channabasappa deposed that about 1

½ years back, the Police came along with

the accused to a land situated in between

Nandigudi and Hindasagatta, there they

found one motor bike and the accused

identified the said bike. Accordingly, MO-8-

       Motor Cycle bearing registration               No.KA

       17/EL     5938    was     seized    under   Ex.P.4-

       Sezuire      mahazar      and      supported     the

       prosecution case.

(v). PW.5-Kotrappa is the eyewitness and panch

witness to Ex.P1-Spot Mahazar. He

identified Mos.1 and 2 i.e., one glass bottle

and one glass cup and supported the

prosecution case.

(vi). PW.6-Yallamma, who is the eyewitness to

the incident deposed that she is acquainted

with PW.8 and she is an English teacher.

About one year earlier to date of deposition

at about 4.40 p.m., when she was

collecting water from tap, the accused came

on a motor cycle along with acid bottle and

he poured the acid to a glass and threw on

the face and the hands of PW.8; PW.3-

Raghu who was with PW.8 also sustained

corrosive injuries, thereby, PW.8 started

screaming and people gathered there and

supported the prosecution case.

(vii). PW.7-Nagaraja, the father of PW.3-Raghu

who informed about the incident to the

police station and supported the case of the

prosecution.

(viii). PW.8-Kavitha.T.H., the victim deposed the

entire incident reiterating averments made

in the complaint and specifically stated that

at about 4.30 p.m., when herself and PW.3

her student were proceeding to Kokkanur

village near Malladara Gowramma's house,

the accused came from opposite side and

stopped them and poured acid on her face.

Though, she protected her face with the

hands, yet she sustained serious corrosive

injures on face, two hands and other parts

of the body. She also deposed that PW.3-

Raghu also sustained corrosive injures on

his head and other parts. She was taken to

the hospital by people who gathered there

and supported the prosecution case.

(ix). PW.9-Habibullakhan, the panch witness to

Ex.P3-Sezuire mahazar. He turned hostile to

the prosecution case.

(x). PW.10- Rangappa S/o.Kotrappa, the

relative and uncle of PW.8 took the injured

(PW.8) to S.S.High Tech Hospital,

Davanagere for treatment and deposed that

he identified the accused as Mahesh and

was harassing the victim to marry him. As

the parents of the victim have not

consented for the marriage, the accused

threw acid on the victim. He lodged the

complaint with the Jurisdictional Police as

per Ex.P10 and supported the case of the

prosecution.

(xi). PW.11-Rangappa S/o. Hanumagouda is the

brother of the victim and he is the witness

to the vehicle sezuire mahazar-Ex.P11 and

supported the case of the prosecution.

(xii). PW.12-Ranganagouda is the brother of the

accused and also owner of the motor cycle.

He identified Ex.P12 to 15-photos and he is

the RC owner of the said vehicle. He got

released the said vehicle from the Court.

(xiii). PW.13-Salim is the garage owner and who

sold acid to the accused on the request of

the accused that he need to put acid to the

roots grown in the jetty in front of his

house. He deposed that he has given acid in

a bottle. He admitted that he has given

acid to the accused and he came to know

that the accused had thrown the said acid

on the victim when the Police came

alongwith the accused to his garage and

supported the case of the prosecution.

(xiv). PW.14-Tirthachari, the Head Master of

Smt.Anjanadevi Primary school, Kokkanur

where PW.8 was working and he issued

certificate Ex.P17. He supported the case of

the prosecution and he has specifically

stated that he has given Ex.P17 on

12.04.2013.

(xv). PW.15-Anusuyamma, who is an eyewitness

to the incident has deposed that when she

has seen the victim and PW.3, both were

suffering from acid attack. But she was not

aware that who had thrown acid as the

person who threw the acid ran away from

the spot. She turned partly hostile to the

case of the prosecution

(xvi). PW.16-Anitha, the mother of PW.3 deposed

that PW.3 is her son and is studying at

Smt.Anjanadevi Primary school, Kokkanur

in first standard. She is acquainted with

PW.8-the victim as she was working as

teacher in the said school and everyday,

PW.3 used to go alongwith PW.8. On the

date of the incident, when they were

returning from the school, she came to

know that the accused had thrown acid on

PW.8, the teacher and her son. Thereafter,

villagers took both victim and her son to the

Bapuji Hospital, Davanagere and supported

the case of the prosecution.

(xvii). PW.17-Dr.Harsha, who examined

PW.3 on 31.01.2013 at about 9.00 p.m.,

and issued wound certificate-Ex.P18

deposed that PW.3-Raghu was suffering

from acid attack and there are acid injuries

on his body and supported the case of the

prosecution.

(xviii). PW.18-Dr. Kantesh, had given first-

aid to PW.8 and PW.3 at Primary Health

Centre, Kokkanur. He has given medical

report of the victim as per Ex.P19 and

supported the case of the prosecution.

(xix). PW.19-Kiran, who registered the case in

Cr.No.24/2014 and sent FIR to the

Jurisdictional Court on the basis of the

complaint lodged by PW.10-Rangappa.

(xx). PW.20-S.Suma,        Scientific   Officer,   FSL

       Bangalore      examined    the   articles   and

submitted the report as per Ex.P21. She

supported prosecution case. In his cross

examination, she denied the suggestion that

without conducting proper examination, she

had mechanically arrived at opinion and

issued false certification-Ex.P.21.

(xxi). PW.21-L.Chandrappa, ASI Malebennur

Police Station is the investigating officer

who conducted spot mahazar as per Ex.P1

and recovered MOs.1 & 2 and supported the

case of the prosecution.

(xxii). PW.22-Dr.Nitin, Professor, S.S.High

Tech Hospital, Davanagere, who treated

PW.8 deposed that when he examined the

victim, she has sustained acid injuries on

her face, both hands and on the entire

body, corrosive injures were found.

Accordingly, he issued Ex.P12, the medical

report of the injured and supported the case

of the prosecution.

(xxiii). PW.23-Umeshbabu, PSI, is the

investigating officer, who conducted part of

the investigation, conducted Ex.P1-spot

mahazar, Exs.P2, 3 & 4-sezuire mahazars

and Ex.P11-vehical seizure mahazar and

supported the case of the prosecution.

(xxiv). PW.24-Pampanagouda, CPI, who

conducted further investigation. He deposed

that after verifying Ex.P17-Service

certificate, Ex.P23-Attendance Register and

Ex.P24-Appointment Order, on completion

of the investigation, he filed Charge sheet.

17. In the cross-examination of PW8, PW3 and other

prosecution witnesses who supported the case of

prosecution, no useful or worthy materials are elicited so as

to disbelieve or discredit their testimony.

Based on the aforesaid both oral and documentary

evidence on record, the learned Sessions Judge proceeded to

convict the accused for the offences made out in the charge

framed.

VI. CONSIDERATION

18. It is the specific case of the prosecution that at

the inception, the accused was insisting PW.8 to marry him

and as the family members of the victim did not give

consent, he got disgusted and with an intention to take

revenge on her, he decided that she should not marry

anyone else and to disfigure her face, on 31.01.2014, he had

thrown acid on PW.8 and PW.3, thereby, they sustained

serious corrosive injures.

19. Though learned counsel for the appellant

contended that identification of the accused is not proved,

PW.8, the victim specifically stated on oath and identified the

accused that on unfortunate day, when herself and PW.3

after attending school at about 4.30 p.m., came near

Malladara Gowramma's house, the accused came from

opposite side in a motor cycle and stopped the victim & PW.3

and he poured acid from the bottle to one glass and had

thrown on her and PW.3, thereby, she sustained corrosive

injuries on her face, both hands and all over the body. She

clearly identified the accused and she deposed in categorical

terms that the accused had thrown acid on her. Nothing

worthy material is elicited in her cross-examination. She

denied the suggestion that the accused had not come on a

motor cycle (MO.8) and not poured acid. She also denied

that Ex.D1-the exercise note book contains her own

handwriting and she has made a false statement on the

advice of maternal uncle and her brother that the

handwriting is not belong to her and further, she denied the

suggestion that the accused has not poured acid. The said

evidence of PW.8 was corroborated with the evidence of

PW.3-the minor boy, another injured eye witness who also

sustained corrosive injuries alongwith PW.8. PW.3

specifically deposed in his examination-in-chief and cross-

examination that the accused had thrown acid on his teacher

and on him, thereby, they sustained corrosive injuries.

PW.13-Salim, who sold the acid to the accused has

specifically stated that he has given one bottle of acid on the

request made by the accused to remove roots grown in the

jetty and he came to know that the accused thrown the said

acid on the girl, thereby, the identity of the accused is proved

by the evidence of PW.3, PW.8 and PW.13 and other

prosecution witnesses. Therefore, the contention of the

learned counsel for the appellant that prosecution has not

established the identity of accused cannot be accepted.

20. PW.18-Doctor who examined the victim-PW.8 has

given report dated 04.08.2014 marked at Ex.P19. In the said

report it has been specifically stated that on request made by

the Police Sub-inspector, letter dated 01.08.2014, victim,

aged 25 years D/o. Hanumanthappa, Hindasagatte,

Mahadevappa Mane, Kokkanur came with history of acid

vitrolage on her by Mahesh at 4.15 p.m. near 'baavi' (well)

Kokkanur sustained injuries and he has given treatment. He

noted following injuries.

1) Burnt injury over the face about 10x10 cm.

2) Burnt injury over the back about 5x5 cm.

3) Burnt injury over the right and left hand about 5x5 cm.

4) Burnt injury over the right and left legs about 3x3 cm.

5) Burnt injury over the neck and shoulder right side region about 3x3 cm.

6) Burnt injury over the both lids of eye.

With above ref.(1)

- Operated on 04.03.2014 - Acid burn on face Debridement.

- Operated on 11.03.2014 - Acid burns on face collagen sheel application.

- Operated on 25.03.2014- Skin grafting

- Operated on 12.04.2014 - For Etriopion of upper and lower eyelid.

- Ectriopion release and full thickness grafting.

- From above ref. and O/E I am of the opinion that injury 1 and 6 are Grievous in nature and 2,3,4,5 are simple in nature.

Therefore, the contention of the learned counsel for the

appellant that the accused has not involved in the alleged

acid injures on the victims-PW.8 & PW.3 cannot be accepted.

21. It is well settled that usually in matter of this

nature, testimony of the injured is sufficient to prove the

case of the prosecution. PW.8, the injured withstood

searching cross examination and identified the accused, who

had thrown acid on her on the date of the incident.

Therefore, the contention of the learned counsel for the

appellant that identification of the accused is not proved

cannot be accepted.

22. Normally, the injured would not allow the real

culprit to escape from the rigors of law and falsely implicate

an innocent. Our view is fortified by the dictum of this Court

in the case of Nagesh v. State of Karnataka reported in

2013 Cr.R. 826 (Kant), at Paragraph No.10 it is held as

under:

"Generally an injured does not implicate an innocent does not leave a person who has really caused harm."

23. Our view is also fortified by the dictum of the

Hon'ble Supreme Court in the case of Vijay Shankar

Shinde & Ors vs. State Of Maharashtra reported in 2008

(1) Crimes 216 (SC), at Paragraph No.9 it is held as under:

'The evidence of injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant.'

24. The Hon'ble Supreme Court while considering the

identical circumstances in the case of State of Madhya

Pradesh vs. Mansingh & Ors reported in 2003 (3) Crimes

380 (SC) at Paragraph No.9 held as under:

'Evidence of injured witnesses have evidentiary value and unless compelling reasons exist, their statements are not discarded lightly.'

25. Apart from the evidence of the victims-PW.8,

PW.3-Raghu and PW.13, who sold acid to the accused

coupled with medical evidence-Ex.P19 stated supra, it is also

relevant to state at this stage that PW.20-Dr.S.Suma, who

examined articles No.1 to 7 i.e.,

i) One glass cup

ii) One quarter bottle

iii) One saree

iv) One saree petycoat

v) One shirt

vi) One school bag

vii) One quarter bottle

specifically stated that after scientific examination, she has

given her opinion. Nothing has been elicited in her cross-

examination to discredit the contents of the report or her oral

testimony. Ex.P21-FSL report opinion given by PW.20 reads

as under:

1. Sample found in article No.7 is concentrated sulphuric acid.

2. Presence of Sulphuric acid was detected in the above staged article Nos.1, 2, 3, 4, 5 and 6.

3. The above acid can cause corrosive injuries on contact with the skin.

26. PW.22-Dr.Nitin, Professor, S.S.High Tech

Hospital, Davanagere, also stated that after examination of

PW.8, her face, hair, nose and eyelashes have completely

burnt. In view of throwing of sulphuric acid, the injuries

have been caused and the acid injury marks or scar found on

PW.8 are permanent in nature. Accordingly, he issued

Ex.P22, the medical report, which clearly depicts that PW.8

was admitted in SS Hospital, in plastic surgery ward for acid

burns over the face, eyes and ears and she is under

treatment and she needs to stay for another one month. The

said material clearly depicts that the accused is involved in

acid attack on PW.8 and PW.3.

27. Though, learned counsel for the appellant

contended that since the prosecution has not proved identity

of accused and none of the witnesses supported the case of

the prosecution, except PW.8, the sentence imposed to the

accused by the learned Sessions Judge to undergo

imprisonment for life under the provisions of Section 326A of

IPC needs to be reduced to atleast for ten years, cannot be

accepted. In order to appreciate said contention, it is

necessary to cull out the provisions of Section 326 A of IPC

which reads as under:

'Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine;

Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim;

28. On careful reading of the said provision, it is

crystal clear that whoever causes permanent or partial

damage or deformity to, or bums or maims or disfigures or

disables, any part or parts of the body of a person or causes

grievous hurt by throwing acid on or by administering acid to

that person, or by using any other means with the intention

of causing or with the knowledge that he is likely to cause

such injury or hurt, shall be punished with imprisonment of

either description for a term which shall not be less than ten

years but which may extend to imprisonment for life, and

with fine, provided that such fine shall be just and reasonable

to meet the medical expenses of the treatment of the victim.

29. The provisions of Section 326A does not carry

any such indication in the title regarding the nature of injury

as grievous suffered by use of acid. On closer analysis, it is

seen that the provisions of Sections 326A and 326B provide

eight types of injuries:

      (i)     Permanent damage
      (ii)    Partial damage
      (iii)   Deformity
      (iv)    Burns
      (v)     Maiming
      (vi)    disfigurement
      (vii) Disability
      (viii) Grievous hurt

It is pertinent to note that the first seven of the injuries

referred to in the Sections are classified based on the normal

aftereffect of acid attack, whereas the eighth one is on the

gravity of the effect.

30. Noting the increase in number of acid attack

crimes and absence of suitable legislation in this regard in

Indian Penal Code, the provisions of Section 326A of IPC

came to be introduced by the Legislature by Act 13 of 2013,

with effect from 03.02.2013. The object of the amendment is

to provide stringent punishment for crimes against women

and also to provide more victim friendly procedure in the trial

of such cases and the Committee recommended to make a

specific provisions to award adequate punishment for such

offences which cause grievous hurt by acid attack and also

attempt thereof.

31. Though, learned counsel for the appellant

contended with vehemence for reduction of sentence, the

overwhelming evidence adduced and produced by the

prosecution clearly depicts that the accused has taken cruel

step of pouring sulphuric acid on the head of the victim which

likely cause death and the accused had the knowledge of

consequences of throwing sulphuric acid. The accused after

threatening her to marry him, made a preparation and

purchased acid from PW.13. Learned Sessions Judge while

imposing adequate sentence for the offence under Section

326A of IPC, has noted his duty towards the protection of the

society and a legitimate response to the collective

conscience. The paramount principle that should be the

guiding laser beam is that the punishment should be

proportionate. It is the answer of law to the social

conscience. In a way, it is an obligation to the society which

has reposed faith in the justice deliver system in curtailing

the evil. While imposing the sentence, it is the court's

accountability to remind itself about its role and the

reverence for the rule of law. Courts must evince the

rationalised judicial discretion and not an individual

perception or a moral propensity. The Trial Court further held

that if in the ultimate eventuate the proper sentence is not

awarded, the fundamental grammar of sentencing is

guillotined and law does not tolerate it; society does not

withstand it; and sanctity of conscience abhors it. It was

observed that the old saying "the law can hunt one's past"

cannot be allowed to be buried in an indecent manner and

the rainbow of mercy, for no fathomable reason, should be

allowed to rule. The conception of mercy has its own space

but it cannot occupy the whole accommodation.

32. On careful re-appreciation of entire material, oral

and documentary evidence on record and in view of

unequivocal testimony of the victims, PW.3, PW.8 and

PW.13, who sold acid to the accused, medical evidence and

scientific evidence, the alleged acid attack by the accused on

PW.8 merely on the ground that, she refused to marry him

as her parents did not give consent, the accused cannot treat

the victim as slave and pour acid on her face and body. The

brutality act of the accused shocks the conscious of this

Court. Under the Constitution of India, which is called

'Bhagavad Gita', 'right to life' is the fundamental right

guaranteed and it is the fundamental duty of the State to

protect it. An 'acid attack' by the accused not only caused

physical injuries, but left behind a permanent scar on the

most cherished position of PW.8, who is a teacher and PW.3,

who is the student studying in 'U' KG since their dignity,

honour and reputation are involved. The 'acid attack' is not

only a crime against PW.8 and PW.3, but a crime against the

entire civilized society. It is a crime against basic human

rights and also violates the most cherished fundamental

rights guaranteed under Article-21 of the Constitution of

India.

33. Great Saint and Scholar of our Country - Swami

Vivekananda stated that "the best thermometer to the

progress of a nation is its treatment of its women".

Therefore, the acid attack by the accused on PW.8 to fulfill

his wish to marry her against her will and her parents, is

violation of personal liberty as contemplated under Article 21

of the Constitution of India. The 'acid attack' caused

physical scar on the face and body of PW.8 and the corrosive

injuries on PW.3, a minor boy will heal up by spending lacs of

rupees towards plastic surgery. On record, there is an

estimation of expenses involved for reconstructive surgery

dated 05.07.2014 issued by the Health Care Service India

Private Limited. As per the same, a sum of Rs.22,50,000/-

was estimated for reconstructive surgery. But the mental

scar on victims will remain for ever till their death.

Therefore, the evidence of the victim is more reliable, which

corroborates with the evidence of the other prosecution

witnesses.

34. Our view is fortified by the dictum of judgment of

the Hon'ble Supreme Court in the case of State of Punjab

vs. Bawa Singh reported in (2015) 3 SCC 441, at

Paragraph No.16 it is held as under:

'One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.'

35. The Hon'ble Supreme Court while considering

award of suitable and proportional punishment in the case of

State Of Madhya Pradesh vs Bala @ Balram reported in

(2005) 8 SCC 1 at paragraph No.13 has held as under:

"The rationale for advocating the award of punishment commensurate with the gravity of the offence and its impact on society, is to ensure that

a civilized society does not revert to the days of "eye for an eye and tooth for tooth". Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted."

36. The Hon'ble Supreme Court in the case of State

Of Madhya Pradesh vs Munna Choubey & Anr reported in

(2005) 2 SCC 710 held that "the law regulates social

interests, arbitrates conflicting claims and demands. Security

of persons and property of the people is an essential function

of the State. It could be achieved through instrumentality of

criminal law. Undoubtedly, there is a cross cultural conflict

where living law must find answer to the new challenges and

the courts are required to mould the sentencing system to

meet the challenges. The contagion of lawlessness would

undermine social order and lay it in ruins. Protection of

society and stamping out criminal proclivity must be the

object of law which must be achieved by imposing

appropriate sentence. Therefore, law as a corner-stone of the

edifice of "order" should meet the challenges confronting the

society."

37. Learned Sessions Judge on considering both oral

and documentary evidence on record came to the conclusion

that the involvement of the accused in the acid attack on

PW.3 and PW.8 attracts the provisions of Section 326A of IPC

and imposed life imprisonment with fine of Rupees Ten

Lakhs. Because of the acid attack on PW.8 by accused, PW.8

has to suffer throughout her life. Brutality on her by the

accused will be remembered by her, every moment of life

leaving her as deadwood and she has to suffer mental agony

throughout her life, which cannot be compensated in terms

of money. Admittedly, the acid attack made by accused on

the face of the victim disfigured her permanently and the

doctor, who treated the victim also stated that the injures

are grievous in nature. Therefore, the trial Court is justified

in imposing imprisonment of life and fine of Rupees Ten lakhs

for the offence punishable under Section 326A of IPC.

38. On careful perusal of the original records

especially Ex.P6, the original photograph prior to acid attack

and Exs.P7 & P8, the photograph showing disfigurement after

acid attack as well as Ex.P9, the corrosive injures on the

head of PW.3-Raghu, clearly establish the gravity of the

attack. Though the doctor has made a plastic surgery, the

disfigurement marks is permanent on her body. Even

otherwise, the Court cannot shut its eyes to obnoxious

growing tendency of young persons like accused resorting to

use corrosive substances like acid for throwing on girls,

causing not only severe physical damage, but also mental

trauma to young girls. In most of the cases the victim dies

because of severe burns and septicemia or even if luckily

survives, it will only be a grotesque disfigured person, who

even if survive, lives with mangled flesh, "hideous zombie

like appearance and often blind if acid is splashed on face

and suffer a fate worse than death". The imposition of

appropriate punishment is the manner in which the Court

responds to the society's cry for justice against the such

criminals. Justice demands that the Courts should impose

punishment befitting the crime so that the Courts reflect

public abhorrence of the crime.

39. The Court must not only keep in view the rights

of the criminal, but also the rights of the victim of the crime

and the society at large while considering the imposition of

appropriate punishment. Taking judicial note that such

restorative surgeries cost a fortune and if unfortunately the

parents or the relatives of the victim are poor or even from

middle class strata, they cannot afford or spend the huge

amount and ultimately even after series of surgeries the

result would be not fully restoring the damaged face as has

been done in the present case. Admittedly, in the present

case, the damage caused by the accused throwing acid on

the victim is immense, irreparable and cannot be retractable

and the victim has to suffer throughout her life. Therefore,

the accused is not entitled for any lenience or mercy to be

shown. When a woman is thrown acid on her face, what is

inflicted is not merely physical injury but the deep sense of

some deathless shame. She has to hide her face to the

Society and the victim woman body is not a plaything and

the accused cannot take advantage of it in order to satisfy

his avenger and the Society will not tolerate such things any

longer. The crimes against women continued in a never

ending cycle. As throwing acid on young women or young

lady and minor boy is more dangerous than murder and

same cannot be tolerated by any father, mother, husband,

children of the women etc and society at large. Therefore, it

is high time to deal with the criminals/acid attackers with

iron hand.

40. It is also relevant at this stage that while

recording of statement of the accused under provisions of

Section 313 of Cr.P.C., he has denied all incriminating

circumstances and he has filed the statement under 313(5)

of Cr.P.C., stating that the accused and the victim had love

affair and the victim was pressurized to obtain consent from

her parents and he has produced the letter containing the

hand writing of the victim. Therefore, he has not committed

any offence as alleged. He has taken plea of alibi. Once he

has taken plea of alibi, it is for him to prove the same in view

of the provisions of Section 103 of the Evidence Act as held

by the Hon'ble Supreme Court in the case of State Of

Haryana vs Sher Singh & Ors reported in AIR (1981)

SC1021 in para No.4:

'4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:

"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

41. It is also relevant to state at this stage that in

respect of the incriminating circumstances adduced by the

prosecution witnesses against the accused involvement in

acid attack on PW.8, he has not offered any explanation.

Therefore, adverse interference has to be drawn against the

accused. Our view is fortified by the dictum of the Hon'ble

Supreme Court in the case of Prahlad v. State of Rajasthan

reported in AIR (2019) 14 SCC 438, at Paragraph No.11 held

as under:

            "No   explanation       is        forthcoming    from
     the      statement      of          the accused         under
     Section      313     Cr.P.C.        as      to   when     he




     parted   the company of the victim.              Also, no

explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."

42. Today, world is suffering from the menace of acid

attack. Number of countries are fighting against this menace

across the globe. The study conducted by United Nations

Children's Fund depicts "Acid attack is a serious problem all

over the world, even children are victims of acid attack in

many cases. In an Acid attack, acid is thrown at the face or

body of the victim with deliberate intent to burn and

disfigure. Most of the victims are girls, many below the age

of 18, who have rejected sexual advances or marriage

proposals. Acid attack or vitriolage act of throwing acid

onto the body of a person "with the intention of injuring

or disfiguring out of jealousy or revenge". The most

common types of acid utilized in these assaults include

sulphuric, nitric, and hydrochloric acid. Attack through acid

rarely kills but it causes severe physical, psychological and

social scarring. The victims of acid violence are

overwhelmingly women and children, and attackers often

target the head and face in order to maim, disfigure and

blind a person for life and push her in everlasting life of pain

and apathy."

43. Over the last decade India is witnessing an

alarming growth of acid attack especially on women. The

contributing factors are various for these attacks. "The main

are social weakness of women in the society and the

existence of male dominated society." Moreover, the easy

availability of acid in an inexpensive manner makes the

perpetrators to use this as an ideal weapon against women.

Some of the reasons for acid attack are as follows:

i) Revenge for any post incident occurring between the victim and offender.

ii) The refusal of an offer of the marriage proposal.

iii) The refusal to have sex or relationship.

iv) Failure of a women to bring dowry to her husband.

    v)      Enmity between two families.




          VII.     CONSEQUENCES OF ACID ATTACK


     44.     Acid     attack          victim          faces         long-term

consequences. After the attack, life of victim itself changes

and even their loved ones starts to ignore the victim due to

their horrific physical appearance. Such attack leaves victim

handicapped in some way rendering them dependent on

either their spouse or family. For everyday activities these

dependencies are increased by the fact that many acid

survivors are not able to find suitable work due to vision and

physical handicaps.

Majority of the victims have to face psychological effects which included sympathetic behavior of family, ignorance of children and taunting behavior of relatives. The findings reflected that females were mentally disturbed and they are trying to reduce their stress through weeping and shouting on others. Other psychological effects like eternal trauma, social isolation and suicide plan were also found. While other belongings like fear, threatening and frustration were very high. The acid attacks adversely impact all aspects of the survivors' lives. The psychological consequences were severe in

many instances rendering the survivors mentally retard and eternally shocked.

VIII. SOCIAL AND ECONOMIC CONSEQUENCES

45. Acid attacks usually leave victims handicapped in

some way, rendering them dependent on either their spouse

or family for day to day activities, such as eating and

running errands. They face a lifetime of discrimination from

society and they become lonely. These dependencies are

increased by the fact that many acid survivors are not able to

find suitable work, due to impaired vision and physical

handicapped. As a result, divorce, abandonment by husbands

is common in the society.

46. Moreover, acid survivors who are single when

attacked almost certainly become ostracized from society,

effectively ruining marriage prospects. They are

embarrassed that people may stare or laugh at them and

may hesitate to leave their homes fearing an adverse

reaction from the outside world. Unmarried victims are not

likely to get married and those victims who have got serious

disabilities because of an attack, like blindness, will not

find jobs and earn a living. Discrimination from other

people, or disabilities such as blindness, makes it very

difficult for victims to fend for themselves and they become

dependent on others for food and money.

47. As per the National Crime Records Bureau of

India, the acid attack in India from 2014 to 2019 is as under:

Number of year Cases Reported

The case in hand is an example of uncivilized and

heartless crime committed by the accused. It is completely

unacceptable that concept of leniency or mercy can be

conceived of in such a crime. A crime of this nature does not

deserve any kind of clemency. Emphatically one has to say

that it is individually as well as collectively intolerable. The

accused might have felt that his ego had been hurt by such a

denial to the proposal marriage by PW.8 or he might have

suffered a sense of exaggeration, sense of honour or might

have been guided by the idea that revenge is the sweetest

thing that one can be wedded to when there is no response

to the unrequited love; but, whatever may be the situation,

the criminal act, by no stretch of imagination, deserves any

leniency or mercy. The accused might have suffered

emotional distress by the denial, yet the said feeling could

not to be converted into vengeance to grant a licence to act

in a manner like he has thrown acid on PW.8. "The brutal act

of the accused on PW.8 shocks our conscious and when there

is medical evidence that there was an acid attack on the

young lady aged about 29 years and PW.3, minor boy and

the circumstances having brought home by cogent evidence

and the conviction is given the stamp of approval, there is no

justification to reduce the sentence as contended by the

learned counsel for the appellant."

48. How to appreciate a case in respect of incident

where acid attack has taken place, was subject matter of the

judgment of the Apex Court in the case of Laxmi -vs-

Union of India and Others reported in (2014)4 SCC 427,

the Hon'ble Supreme Court has set out series of guidelines at

paragraphs 7, 8, 9 to 9.6, 11 and 15 which read as under:

7. In our opinion, all the States and Union Territories which have not yet framed rules will do well to make rules to regulate sale of acid and other corrosive substances in line with the Model Rules framed by the Central Government. The States, which have framed rules but these rules are not as stringent as the Model Rules framed by the Central Government will make necessary amendments in their rules to bring them in line with the Model Rules. The Chief Secretaries of the respective States and the Administrators of the Union Territories shall ensure compliance with the above expeditiously and in no case later than three months from the receipt of the draft Model Rules from the Central Government.

8. The Centre and States/Union Territories shall work towards making the offences under the Poisons Act, 1919 cognizable and non-bailable.

9. In the States/Union Territories, where rules to regulate sale of acid and other corrosive substances are not operational, until such rules are framed and made operational, the Chief

Secretaries of the States concerned/Administrators of the Union Territories shall ensure the compliance with the following directions with immediate effect:

9.1. Over the counter, sale of acid is completely prohibited unless the seller maintains a log/register recording the sale of acid which will contain the details of the person(s) to whom acid(s) is/are sold and the quantity sold. The log/register shall contain the address of the person to whom it is sold.

9.2. All sellers shall sell acid only after the buyer has shown:

(a) a photo ID issued by the Government which also has the address of the person;

(b) specifies the reason/purpose for procuring acid.

9.3. All stocks of acid must be declared by the seller with the Sub-Divisional Magistrate (SDM) concerned within 15 days.

9.4. No acid shall be sold to any person who is below 18 years of age.

9.5. In case of undeclared stock of acid, it will be open to the SDM concerned to confiscate the stock and suitably impose a fine on such seller up to Rs 50,000.

9.6. The SDM concerned may impose fine up to Rs 50,000 on any person who commits breach of any of the above directions.

11. The SDM concerned shall be vested with the responsibility of taking appropriate action for the breach/default/violation of the above directions.

15. The Chief Secretaries of the States and the Administrators of the Union Territories shall take necessary steps in getting this order translated into vernacular and publicise the same appropriately for the information of public at large. List the matter on 3-12-2013.

49. The Hon'ble supreme Court while considering the

provisions of Section 302, 326A and 460 of IPC, in a case of

death of women due to acid attack, converted death

sentence in to life imprisonment in the case of Yogendra

alias Jogendra Singh vs. State of Madhya Pradesh

reported in (2019) 9 SCC 243 at paragraph Nos.13 and 15

held as under:

13. In the case before us, the incident is related to the appellant being disappointed in his relation with the deceased who he believed deserted him. The circumstance of the case and particularly the choice of acid do not disclose a cold-blooded plan to murder the deceased. Like in many cases the intention seems to have been to severely injure or disfigure the deceased; in this case we think the intention resulted into an attack more severe than planned which then resulted in the death of the deceased. It is possible that what was premeditated was an injury and not death.

15. We find that there is no particular depravity or brutality in the acts of the appellant that warrants a classification of this case as "rarest of the rare". Therefore, the sentence of death imposed by the High Court is set aside and instead the appellant shall undergo imprisonment for life. The appeals are accordingly allowed.

50. Having said thus, as rightly contended by the

learned counsel for the appellant that learned judge while

convicting the accused under the provisions of Section 326A

for imprisonment of life with fine of Rupees Ten lakhs,

erroneously convicted for imprisonment of life under the

provisions of Section 307 of IPC with fine of Rs.50,000/-.

Learned Judge failed to note that when there were two

sentences and major sentence contemplates life, the other

sentence which also contemplates life sentence automatically

merges. There cannot be two life sentences though learned

Judge held the sentence ordered against the accused runs

concurrently.

51. In this regard it is worth to note the provisions of

Section 31 of Cr.P.C: which contemplates that the sentence

in cases of conviction of several offences at one trial and the

proviso to sub-section (2) to Section 31 lays down the

embargo whether the aggregate punishment of prisoner. In

view of the fact that life imprisonment means imprisonment

for full and complete span of life, the question of consecutive

sentences in case of conviction for several offences at one

trial does not arise. Therefore, in case, a person is sentenced

for conviction of several offences, including one that of life

imprisonment, the proviso to Section 31(2) shall come into

play and no consecutive sentence can be imposed. In the

instant case, the accused has been convicted for more than

one sentence i.e., imprisonment for life with fine of Rupees

Ten lakhs for the offence punishable under Section 326A of

IPC and imprisonment for life with fine of Rs.50,000/- for the

offence punishable under Section 307 of IPC with default

sentence. It is well settled that sentence of life

imprisonment implies imprisonment till the end of normal life

of convict and it cannot be directed to run consecutively.

52. Our view is fortified by the dictum of the

Constitutional Bench judgment of the Hon'ble Supreme Court

in the case of Muthuramalingam and Others vs. State

Represented by Inspector of Police reported in AIR

2016 SC 3340 wherein at paragraphs No.17, 20, 21 and 31,

it is held as under:

"17. The legal position is, thus, fairly well settled that imprisonment for life is a sentence for the remainder of the life of the offender unless of course the remaining sentence is commuted or remitted by the competent authority. That being so, the provisions of Section 31 under CrPC must be so interpreted as to be consistent with the basic

tenet that a life sentence requires the prisoner to spend the rest of his life in prison. Any direction that requires the offender to undergo imprisonment for life twice over would be anomalous and irrational for it will disregard the fact that humans like all other living beings have but one life to live. So understood Section 31(1) would permit consecutive running of sentences only if such sentences do not happen to be life sentences. That is, in our opinion, the only way one can avoid an obvious impossibility of a prisoner serving two consecutive life sentences.

20. Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991 SCC (Cri) 965] was no doubt dealing with a fact situation different from the one with which we are dealing in the present case, inasmuch as Ranjit Singh case [Ranjit Singh v. UT of Chandigarh, (1991) 4 SCC 304 : 1991 SCC (Cri) 965] was covered by Section 427 CrPC as the prisoner in that case was already undergoing a sentence of life imprisonment when he committed a second offence of murder that led to his conviction and award of a second sentence of life imprisonment. In the cases at hand, the appellants were not convicts undergoing life sentence at the time of commission of multiple murders by them. Their cases, therefore, fall more

appropriately under Section 31 of the Code which deals with conviction of several offences at one trial. Section 31(1) deals with and empowers the court to award, subject to the provisions of Section 71 IPC, several punishments prescribed for such offences and mandates that such punishments when consisting of imprisonment shall commence one after the expiration of the other in such order as the court may direct unless the court directs such punishments shall run concurrently. The power to award suitable sentences for several offences committed by the offenders is not and cannot be disputed. The order in which such sentences shall run can also be stipulated by the court awarding such sentences. So also the court is competent in its discretion to direct that punishment awarded shall run concurrently not consecutively. The question, however, is whether the provision admits of more than one life sentences running consecutively. That question can be answered on a logical basis only if one accepts the truism that humans have one life and the sentence of life imprisonment once awarded would require the prisoner to spend the remainder of his life in jail unless the sentence is commuted or remitted by the competent authority. That, in our opinion, happens to be the logic behind

Section 427(2) Cr.P.C., mandating that if a prisoner already undergoing life sentence is sentenced to another imprisonment for life for a subsequent offence committed by him, the two sentences so awarded shall run concurrently and not consecutively. Section 427(2) in that way carves out an exception to the general rule recognised in Section 427(1) that sentences awarded upon conviction for a subsequent offence shall run consecutively.

21. We may now turn to the conflict noticed in the reference order between the decisions of this Court in Cherian [O.M. Cherian v. State of Kerala, (2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123] and Duryodhan [Duryodhan Rout v. State of Orissa, (2015) 2 SCC 783 : (2015) 2 SCC (Cri) 306] cases on the one hand and Kamalanantha [Kamalanantha v. State of T.N., (2005) 5 SCC 194 : 2005 SCC (Cri) 1121] and Sanaullah Khan [Sanaullah Khan v. State of Bihar, (2013) 3 SCC 52 : (2013) 2 SCC (Cri) 34] cases on the other.

31. In conclusion our answer to the question is in the negative. We hold that while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life

sentences so awarded cannot be directed to run consecutively. Such sentences would, however, be superimposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other."

53. Therefore, learned trial Judge is not justified in

convicting the accused for imprisonment of life under the

provisions of Section 307 of IPC with fine of Rs.50,000/-,

when the accused has already been convicted for the offence

under Section 326A imposing life imprisonment with Rupees

Ten lakhs fine. The offence under section 307 of IPC

telescopes in to offence under section 326A of IPC.

Therefore, the punishment imposed by the learned judge

under Section 307 cannot be sustained. However, in view of

dictum of the Hon'ble Supreme Court in the case of

Muthuramalingam and others vs. State represented by

Inspector of Police reported in AIR 2016 SC 3340, the benefit

under section 428 Cr.P.C. is not available, when the court

convicts the accused for life imprisonment. Hence, we make

it clear that the accused is not entitled to the benefit of set

off under Section 428 of Cr.P.C.

54. We notice yet another dimension in the case

while appreciating the arguments putforth on behalf of the

appellant that there cannot be conviction of the accused both

under the provisions of Section 307 of IPC and Section 326A

of IPC.

55. It is settled position of law that a person cannot

be tried and convicted for a single offence twice. It is a

guarantee enshrined in Article 20(2) of the Constitution of

India, which clearly debars double jeopardy. For ready

reference Article 20(2) of the Constitution reads as

hereunder:

"20(2) No person shall be prosecuted and punished for the same offence more than once."

56. In the case on hand, when accused is tried for

specific offence carved out under the Indian Penal Code for

the offence of acid attack, trial Court resorted to Section 307

of IPC, having regard to gravity of offence especially after

effects of the acid attack cases discussed supra. The

Legislature in its wisdom carved out a separate and distinct

offence punishable under Section 326A of IPC., for an action

wherein the acid is used as a weapon for attacking the

innocent, as is referred to supra and prescribed suitable

punishment. Therefore, the action of the accused can be

traced to and punished only under Section 326A of IPC and

the said action of the accused cannot be tried and punished

under Section 307 of IPC along with Section 326A of IPC.

57. In other words, the offence under Section 307 of

IPC which was available to the prosecution in the absence of

Section 326A of IPC., was justifiable. Since prosecution has

invoked Section 326A of IPC and trial Court accepting the

prosecution case, convicted the accused for the offence

punishable under Section 326A of IPC., and ordered for

imprisonment of life, convicting the accused again for the

same action under Section 307 of IPC would certainly require

interference by this Court by resorting Article 20(2) of the

Constitution of India. Moreover, even if the offence under

Section 307 of IPC., is taken into consideration as required in

the case on hand, the same has merged into Section 326A of

IPC., and therefore, action of the accused should be only

treated as offence punishable under Section 326A of IPC and

not under Section 307 of IPC by applying the doctrine of

merger.

                       IX.    CONCLUSION


      58.   On    re-appreciation           of     the     entire    oral   and

documentary evidence on record and in the light of the

judgments of the Hon'ble Supreme Court cited surpa, we

answer the points raised in the present criminal appeal as

under:

(i) The first point raised in the present

criminal appeal is answered in the

negative holding that the learned

Sessions Judge is not justified in

convicting the appellant/accused for the

offence punishable under Section 307 of

IPC and sentencing him to undergo

imprisonment for life and to pay a fine of

Rs.50,000/- with default clause in the

facts and circumstances of the case.

      (ii)        The second point raised in the present

                  criminal        appeal       is    answered       in   the

                  affirmative        holding          learned     Sessions

                  Judge      is    justified        in     convicting    the

                  appellant/accused                 for     the     offence

punishable under Section 326A of IPC and

sentencing him to undergo imprisonment

for life and to pay a fine off

Rs.10,00,000/- with default clause in the

facts and circumstances of the case.

59. At this stage, it is relevant to state that it is not in

dispute that the victim has suffered corrosive injuries in the

unfortunate incident occurred in the case on hand and she

has spent large sums of money for plastic surgery.

Therefore, this is a fit case to recommend that victim is

entitled to compensation as contemplated under the

provisions of Section 357-A(3) of the Code of Criminal

Procedure. In view of the above, the victim is permitted to

approach the District Legal Services Authority, Davangere by

filing an application seeking adequate compensation. If such

an application is filed, the District Legal Services Authority

taking into consideration the young age of the victim, who

was a teacher and that she has suffered corrosive injuries in

the unfortunate incident, shall arrive at the appropriate

quantum of compensation and make suitable

recommendations.

X RESULT

60. In view of the above, we pass the following:

ORDER

(i) The Criminal Appeal is allowed in part.

(ii) The impugned judgment of conviction and

order of sentence dated 25/26.02.2016

made in S.C. No.86/2014 on the file of the

II Addl. District & Sessions Judge,

Davangere, insofar as convicting the

appellant/accused for the offence

punishable under Section 326A of IPC and

sentencing him to undergo life

imprisonment and to pay a fine of

Rs.10,00,000/- (Rupees ten lakhs only)

and in default of payment of fine to

undergo simple imprisonment for five

years, is hereby confirmed.

(iii) The impugned judgment and order passed

by the trial Court insofar as convicting the

appellant/accused for the offence

punishable under Section 307 of IPC and

sentencing him to undergo life

imprisonment and to pay a fine of

Rs.50,000/- with default clause, is hereby

set aside. The accused is hereby

acquitted for the offence punishable under

Section 307 of IPC.

(iv) In exercise of appellate powers of this

Court under the provisions of Section

357(3) of the Code of Criminal Procedure,

on deposit of the fine amount, a sum of

Rs.9,75,000/- (Rupees nine lakhs seventy-

five thousand only) shall be paid to victim

(PW.8) as compensation and remaining

amount of Rs.25,000/- (Rupees twenty-

five thousand only) shall vest with the

State Government towards defraying

expenses.

(v) The Victim (PW.8) is permitted to approach

the District Legal Services Authority,

Davangere by filing an application seeking

adequate compensation. If such an

application is filed, the District Legal

Services Authority taking into consideration

the young age of the victim, who was a

Teacher and that she has suffered

corrosive injuries in the unfortunate

incident and has spent large sums of

money for plastic surgery, shall arrive at

the appropriate quantum of compensation

and make suitable recommendations.

Ordered accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

VM