HAKIM Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) These appeals assail the impugned judgment dtd. 23/12/2019 of the learned Trial Court convicting all three appellants for offence punishable under 326A/34 IPC and order on sentence dtd. 29/1/2019 awarding each of the appellants sentence as under:

(2.) As per the case of the prosecution on 8/6/2014 at about 11:30 p.m., complainant Bablu came to PS Govind Nagar, Mathura, U.P. and gave a written complaint. As per the complaint at about 8:00 p.m. on that day, his wife Meera Devi was returning to her house after a temple visit ('darshan' of Galteshwar Mahadev) and on the way back, near Govind Nagar Railway crossing, the three appellants met her and threatened her. They told her that she will have to face the consequences of the report which she had lodged earlier with the police. While appellant Hakim and Gyani held Meera Devi, Umesh poured acid over her and ran away. The victim started screaming in agony and many persons gathered around. The complainant's sister-inlaw (Bhabhi) Rajjo Devi, who was with her but 10-15 paces behind her, took the victim and got her admitted to the Government Hospital, Mathura where her condition was quite serious. Based upon the complaint, FIR No.130/2014 was registered and the investigation was carried out by SI P.K. Malik. After visiting the hospital where the victim was admitted to the burns ward, SI P.K. Malik along with Constable Vivek Kumar came to the gate of the hospital, when a secret information was received that appellant Umesh was present at Govardhan Chauraha on Agra-Delhi Highway and was waiting for some vehicle. Upon reaching the chauraha (cross-road), appellant Umesh was arrested. On 11/6/2014, SI P.K. Malik recorded the statement of the PW-6, sister-in-law Rajjo. Efforts were made to arrest appellant Hakim (who was the father of Umesh) and Gyani by raiding their houses but Hakim was not found at home and the house of Gyani was found locked. Despite subsequent raids, the accused Hakim and Gyani could not be found, however, they surrendered subsequently on 15/6/2016. In the meantime, pursuant to inquiries with the family, the police came to know that the victim had been shifted to Bharatpur to another hospital and would be discharged after 3-4 days. On 9/6/2014, the statement of the victim was recorded and on completion of the investigation, the IO filed the charge sheet on 22/6/2014 against all three appellants under Sec. 326A IPC. Cognizance was taken and the case was committed to the court of Sessions and charges under Sec. 326A/34 IPC were framed to which they pleaded not guilty and claimed trial. The prosecution examined 14 witnesses, statements of the appellants were recorded under Sec. 313 Cr.P.C. and the appellants examined 3 witnesses in defence. It may be noted that on a petition filed by the complainant, the Hon'ble Supreme Court of India vide order dtd. 1/9/2015 transferred the present case from Mathura to Delhi.

(3.) Senior counsel appearing on behalf of the appellants contended that the learned Trial Court had overlooked facts and evidence on record and passed an order in a mechanical manner since there were many contradictions and inconsistencies in the version of the prosecution. He contended that the appellants had no reason and motive to commit the alleged offence whereas the complainant and the victim had strong reasons and motives to falsely implicate the appellants since Umesh was counsel in a criminal case against the family members of the complainant and victim; and just a few days before the alleged incident, he had registered a criminal case against one Manohar and Bhola who were family members of the complainant and victim. It was further contended that while the FIR was lodged at about 11:30 p.m. at the instance of the complainant PW-2 Bablu, Umesh had already been detained in PS Govind Nagar, Mathura and this fact shows that a false case had been registered against the appellants. Besides, the exact place of occurrence as per the site plan is different from what was stated by PW-4, the victim Meera. As per the statement of PW-6, Rajjo, she had reached the spot after some time thereby not being an eyewitness to the alleged incident. The IO of the case inspected the place of occurrence only on 19/7/2014 after a long delay from the alleged date of the incident and this shows that the investigation was extremely sloppy and the benefit of the same should go to the accused. The learned senior counsel for the appellants extensively deliberated upon the long sequence of medical assistance which the victim was purported to have received from the local hospital at Mathura, Prabha Hospital Agra and then at a hospital at Bharatpur. Thereafter, she was hospitalized in Swarna Jayanti Samudaik Hospital, Mathura from 28/6/2014 to 4/8/2014 and then further was examined at an eye centre, Mathura and at Aligarh in the meantime, as per the case of the prosecution. The senior counsel contended that it is not possible that when she was hospitalized at Mathura for a period of about one and a half months then how she could take treatment from several doctors of other hospitals in Aligarh and Mathura at the same time. The allegation on behalf of the appellants was that the victim and her family were desperately trying to procure medical documents in her favour in order to falsely implicate the appellants. Also, as per the FIR, MLC and statements of witnesses under Sec. 161 Cr.P.C. there was no eye injury on the eye of the victim and therefore the defect in her eye was not the result of the alleged incident. The victim and the family had connived with various hospitals in Aligarh and Mathura in order to create a case of eye defect on the basis of false and fabricated documents and this was evident from the testimony of DW-2 who stated that the left eye of the victim was already defective and he had seen her prior to the incident. A plea of alibi is raised in favour of appellant Umesh on the basis that he was present at an engagement ceremony of his friend Narendra at the time of the alleged incident and this fact was purportedly supported by DW-1 who was also present at that programme. The senior counsel for the appellants presented copy of a handbook titled'Standard Operating Procedures- A Forensic Guide for Crime Investigators' published by LNJN, National Institute of Criminology and Forensic Science, Delhi issued by Ministry of Home Affairs, New Delhi. It was contended that there is a standard operating procedure which ought to be followed by the police for investigating an offence under Sec. 326A IPC but it was not followed in this case. Neither was the alleged substance sent for examination to prove that it was a certain kind of acid nor were the clothes of the victim seized for further investigation, therefore, the ingredients of Sec. 326A IPC were not established. The prosecution was unable to prove that the alleged substance used by the appellants was acid. The senior counsel for the appellants also contended that without prejudice to the case of the defence of not guilty, Sec. 326 IPC covers a case of voluntarily causing grievous hurt by dangerous means which includes corrosive substance and therefore it was not necessary that the appellant should be held guilty under Sec. 326A. In addition, reliance was also placed on Sec. 325 IPC for voluntarily causing grievous hurt, which as per the appellants could have been the worst case against them, if the substance alleged to have been used was not proven to be either corrosive or acid in nature and would therefore neither fall within Sec. 326 or Sec. 326A. Further, no public person's testimony was taken by the police and it was not investigated whether by the alleged throwing of the acid, other people would have also received burns. In addition to the above, submissions were advanced on behalf of appellant Gyani who was the son of a friend of Umesh and that he was a young boy who was not involved in any manner with the other appellants. Senior counsel for the appellants drew the attention of this Court to the following judgements in support of the plea: