Dudh Nath vs The State

Ajit Bharihoke, J.—This appeal is directed against the judgment of the learned Additional Sessions Judge in Sessions Case No. 102/1993 arising out of FIR No. 911/1971 Police Station Pahar Ganj, New Delhi vide which the appellant has been convicted for having committed offences punishable under Sections 302 and 326 of the Indian Penal Code (in short ''IPC'') and the consequent order on sentence. Briefly stated, case of the prosecution as revealed from the charge sheet is that on 17th October 1971 Shambhu (since deceased) and PW-1 Hari Ram were admitted in Irwin Hospital with the history of having suffered acid burns. The information about their admission in hospital was conveyed by the Duty Constable to the Police Station Pahar Ganj, which was recorded vide daily diary No. 12-A dated 17th October 1971. Copy of the DD report was entrusted to S.I. Nathu Singh for further action, who visited the Hospital and collected MLCs of both, the deceased Shambhu and injured Hari Ram who were declared unfit for making the statement. Thereafter, he went to the place of occurrence where he met Ram Harak and recorded his statement, wherein he stated that he was sharing a room in Qtr. No. AB-410, Gali No. 3, Amarpuri, Nabi Karim, Delhi with the deceased Shambhu, injured Hari Ram and his nephew Ram Prasad. About 20 days prior to the occurrence appellant Dudh Nath also came and started living with them in the room. On the fateful night, the deceased Shambhu and Hari Ram were sleeping on a cot in the room. He and his nephew Ram Prasad were sleeping on another cot in the room and appellant Dudh Nath was sleeping on a separate cot. At about 4.30 AM, he woke up on hearing shrieks of the deceased Shambhu and injured Hari Ram and he saw Dudh Nath fleeing away after pouring acid on Shambhu and Hari Ram. Shambhu suffered acid burns on his chest, face and other parts of the body and Hari Ram also suffered acid burns on his body. His nephew Ram Prasad took both of them to the hospital and got them admitted. On the basis of aforesaid statement, formal FIR was registered. From the place of occurrence, a plastic can emitting smell of acid was seized. Sample acid affected soil, sample soil, some ash and the cot on which Hari Ram was reportedly sleeping were seized. The Investigating Officer also took into possession clothes of the deceased Shambhu and injured Hari Ram which were burnt due to acid. Shambhu later on expired. His body was sent for post mortem and as per the report of post mortem, cause of death was found to be the acid burns. The items seized during investigation were sent to CFSL for chemical analysis and as per the report of CFSL, sulphuric acid was found to have been used in the occurrence. Investigating Officer made efforts to arrest Dudh Nath who had absconded and since he could not be traced he was declared a proclaimed offender.

The charge sheet against the accused was filed showing him as an absconder. Evidence against the appellant was recorded in absentia u/s 512 of Cr.P.C. 1898 and after recording statements of the witnesses the case was consigned to the Record Room. The accused, however, was arrested by the police on 15th July 1989 and put to trial.

On conclusion of trial, the learned Additional Sessions Judge on consideration of the evidence produced by the prosecution found the appellant guilty of offences punishable under Sections 302 and 326 IPC and sentenced him accordingly.

The learned Amicus Curiae has taken us through the testimony of PW-1 Hari Ram, PW-2 Mohra Devi widow of the deceased and PW-9 Ram Prasad and submitted that from their testimony it is evident that there was ill-will between the appellant and the deceased in respect of some dispute regarding village land between their respective families and also that PW-1 Hari Ram is admittedly the brother-in-law of the deceased. She has submitted that the learned Trial Court ought to have taken note of aforesaid facts to conclude that PW-1 Hari Ram had a motive to falsely implicate the accused, therefore, instead of his relying upon his uncorroborated testimony regarding the identity of the appellant as the acid thrower, the learned Additional Sessions Judge ought to have given benefit of doubt to the appellant.

We are not convinced with the submission put forth by the learned Amicus Curiae. The law relating to appreciation of evidence of witness is well-settled. It has been held time and again by the Hon''ble Supreme Court that where testimony of witness is reliable and trustworthy, it cannot be discarded even if the witness is related to the deceased or inimical to the accused. On careful perusal of the evidence, it transpires that PW-1 Hari Ram had also suffered acid burn injuries in the occurrence, therefore, his presence at the spot cannot be doubted. He has categorically stated that on the fateful morning at about 4.00 AM, the appellant had thrown acid on him and the deceased Shambhu. The witness was cross-examined at length by the learned counsel for the appellant but nothing material so as to shake the credibility of the witness came out on record. Although PW-9 Ram Prasad has not identified the appellant as the person who had thrown acid, yet from his testimony it is clear that Dudh Nath was sleeping on a cot outside the room in the veranda during the previous night and he had absconded after the occurrence. This conduct of Dudh Nath hints towards his guilt, otherwise there was no reason for his absconding. PW-9 Ram Prasad has also stated that when he woke up on hearing the shrieks of the victims, PW Hari Ram told him that the appellant has poured acid on Shambhu. In the cross-examination also, in response to a suggestion given by the learned counsel for the appellant accused, PW-9 Ram Prasad deposed that Hari Ram and Shambhu had cried that Dudh Nath has poured acid on them. From the said version of PW-9, it is evident that immediately after the acid was thrown on the deceased and PW-1 Hari Ram, their spontaneous reaction was to say that the appellant Dudh Nath had thrown acid on them. That conduct of PW-1 Hari Ram and Shambhu is so inter-twined with the occurrence that it forms part of the same transaction, therefore, the version of PW-9 regarding the conduct of the deceased as also PW-1 Hari Ram naming Dudh Nath appellant as a culprit is a relevant fact admissible in evidence u/s 6 of the Indian Evidence Act. This circumstance, gives an assurance that PW-1 Hari Ram has deposed truthfully in respect of identity of the appellant Dudh Nath as the person who threw acid upon him and the deceased.

Learned Amicus Curiae has further submitted that the testimony of PW-1 Hari Ram and PW-9 Ram Prasad suffer from serious contradiction in respect of the place where the appellant was sleeping on the previous night. She has pointed out that PW-1 Hari Ram has deposed that on the fateful night all of them including the appellant, were sleeping inside the room and the cot of the appellant was near the door, whereas PW-9 Ram Prasad has contradicted him by deposing that the appellant Dudh Nath was sleeping in the veranda outside the room. She has also submitted that PW-9 Ram Prasad in his testimony before the Court has improved upon his earlier statement u/s 161 Cr.P.C. by deposing that when he woke up, he saw smoke like vapours emitting from the clothes of the deceased and PW Hari Ram which fact does not find mention in his statement u/s 161 Cr.P.C. She has urged us to infer from the above referred contradiction and improvement that PW-1 Hari Ram and PW-9 Ram Prasad are not reliable witnesses.

The contradiction and improvement pointed out by the learned Amicus Curiae are inconsequential. Otherwise also, on careful reading of evidence, we find that the witnesses Hari Ram and Ram Prasad in their narration of the occurrence are natural and truthful. We cannot lose sight of the fact that in this case the appellant had absconded after the occurrence and he was arrested after a lapse of 18 years, thereafter he was put to trial. Since the witnesses were examined after a lapse of such a long period, minor variations in their testimony were bound to occur because of failure of memory due to passage of time. Therefore, no importance can be attached to the contradiction and improvement pointed out by the learned Amicus Curiae.

The learned Amicus Curiae has pointed out that though the plastic can emitting smell of odour of sulphuric acid was seized from the spot of occurrence, yet the Investigating Officer did not make any effort to lift finger prints from the can, had he done so, those finger prints could have been compared with the finger prints of the appellant to verify whether or not he was the person who threw acid on the victims. This lapse on the part of the Investigating Officer, according to the learned Amicus Curiae, has deprived the appellant to prove his innocence, as such he is entitled to benefit of doubt.

The learned Amicus Curiae is right in submitting that it was desirable on the part of the Investigating Officer to make efforts to lift finger prints from the plastic can recovered from the spot because finger prints are almost conclusive evidence to fix the identity of a person. However, in our considered view, above said lapse in the investigation is not so serious so as to reject the testimony of the eye witnesses which is otherwise trustworthy and reliable.

The learned Amicus Curiae has further submitted that the weapon of offence i.e. the plastic can which was used for throwing sulphuric acid on the victims was not produced during the trial resulting in a gross prejudice caused to the appellant, as this has deprived the Trial Court to examine said weapon of offence to come to a conclusion whether or not the sulphuric acid, which is highly reactive, could have been stored in the aforesaid plastic can. In support of her contention, the learned Amicus Curiae has relied upon the judgment of this Court in the matter of Lala Ram and another Vs. The State, .

We have gone through the above referred judgment relied upon by the learned Amicus Curiae. In our considered view, aforesaid judgment is not applicable to the facts of this case. The weapon of offence in this case was sulphuric acid and not the can in which the sulphuric acid was stored. So far as the plea to the effect that plastic can which was recovered at the spot could not have stored sulphuric acid is concerned, it may be pointed out that as per record said plastic can was sent to the CFSL for chemical analysis and as per the report of CFSL Ex.PW-5/D, the said plastic bottle contained colourless liquid which gave positive test for sulphuric acid, meaning thereby that the plastic bottle/plastic can recovered from the spot of occurrence was made of such a material which was not reactive with sulphuric acid. Therefore, non-production of plastic can, in our view, has not caused any prejudice to the appellant.

The learned Amicus Curiae has submitted that even if the prosecution story is taken to be true, the conviction u/s 302 IPC is not sustainable because from the facts and circumstances of the case, intention on the part of the appellant to kill the deceased cannot be inferred. She has submitted that under the given facts and circumstances, only inference which could be drawn is that the appellant had intention to cause grievous injury to the deceased but, unfortunately, it resulted in his death, Therefore, at the most, case of the appellant falls within the purview of Section 304 IPC, if not u/s 326 IPC.

We do not find any merit in this contention. Intention of a person is his state of mind and it is almost impossible in most of the cases to get a direct evidence of intention. Thus, it has to be gathered from accompanying facts and circumstances of the case. It is established from the testimony of PW-1 Hari Ram, PW-2 Mohra Devi and PW-9 Ram Prasad that the appellant was nursing a grudge against the deceased because of some dispute regarding village land between the respective families of the appellant and the deceased and that he had come few days earlier to stay with the deceased in the same room. From the evidence on record, prosecution has been able to establish that the appellant waited for an opportune moment to settle the score. He threw acid upon the deceased and PW-1 Hari Ram in early morning hours when they were fast asleep and were not in position to defend themselves. Further, from the statement of PW-3 Dr. Vishnu Kumar who conducted post mortem on the body of the deceased, it transpires that the deceased had suffered serious acid burns. He has deposed that on external examination of the body, he found following injuries:

Cut open drip wound on the right leg in lower and inner part.

Acid burns present on face, front and sides of neck nearly whole of front of chest, front of middle of abdominal wall up to pubic region, genitals at places inner and front side of both thighs, both the upper limbs on all sides nearly leaving at places on its back part, back side of chest in upper part on both sides and trickling mark in mid line and at places on the left upper chest. Acid trickling evidence was present in most of the areas from above downwards and before backwards also. Skin was brownish black, firm and parchment like. Stomach on opening showed blackish material with walls stained black because of corrosion in nature and mucous membrane eroded at places in stomach...... Rest of the organs were intensely congested. In my opinion death in this was due to shock consequent to extensive acid burn.

From the nature of acid burns suffered by the deceased Shambhu, it is apparent that a huge amount of acid was thrown upon him, otherwise he would not have suffered such serious acid burns which covered almost half of his body. Thus, taking into consideration the fact that the appellant waited for the opportunity to throw acid on the deceased when he was fast asleep and that he threw huge quantity of acid on him, it can be safely inferred that there was a clear intention to kill the deceased. Thus, in our view, the learned Trial Court has rightly recorded the conviction u/s 302 IPC.

In view of the above discussion, we do not find any merit in the appeal. It is, accordingly, dismissed. The appellant Dudh Nath is on bail. His bail-cum-surety bond is, accordingly, cancelled. He is ordered to be taken into custody to undergo the remaining sentence as awarded by the learned Additional Sessions Judge.