Harbhajan Singh vs State (Delhi Admn.)

Ajit Bharihoke, J.—The appellant has been convicted u/s 302 IPC by the learned Additional Sessions Judge for having committed murder of deceased Ashraf by throwing acid upon him and sentenced to undergo imprisonment for life and also to pay fine of Rs. 2,000/-.

Briefly stated, the case of the prosecution is that on 20.11.1987 at about 9.30 PM, injured Ashraf (since deceased) was got admitted in JPN Hospital by PW4 Mubarak with alleged history of having sustained burns when someone threw acid upon him while he was defecating near Shop No. 57, Ram Nagar, Qutab Road, Delhi. The duty constable Surjit Singh (PW15) conveyed the message to the Police Station Nabi Karim which was recorded as DD No. 24A at the police station. A copy of DD report was handed over to S.I. Durga Dutt for investigation. He accordingly reached JPN Hospital along with Constable Naresh Kumar and collected MLC of the injured Ashraf, who was declared unfit for statement. The Investigating Officer on the basis of information available with him, made endorsement on the copy of DD No. 24A and sent it to the police station for registration of the case and on the basis of the said information, formal FIR No. 464/87 dated 21.11.1987 was registered at 12.10 AM u/s 326 IPC. SI Durga Dutt did not find any eye witness in the hospital, however, on coming to know the place of occurrence from the address mentioned in the MLC, he went to the place of occurrence, but could not find any eye-witness there either.

On 21st November, 1987, the injured Ashraf was declared fit for statement and the Investigating Officer recorded his statement u/s 161 Cr.P.C. It is further the case of the prosecution that a statement of injured Ashraf was also recorded u/s 164 Cr.P.C. by the learned Metropolitan Magistrate on 21.11.1987 in the hospital.

Ashraf expired on 25.11.1987 and as per the post-mortem report Ex.PW-10/D, the cause of his death was as a result of septicaemia consequent upon the corrosive burns. Body of the deceased was sent for post-mortem and the doctor concerned in his report Ex.PW10/D has opined that the burns suffered by the deceased were sufficient to cause death in ordinary course of nature. The Investigating Officer also recorded the statement of witnesses, recovered the mug from the spot of occurrence and after completion of the formalities of investigation, submitted the charge-sheet against the appellant u/s 302 IPC. The appellant was charged u/s 302 IPC. He pleaded not guilty and claimed to be tried.

On the conclusion of trial, the learned Additional Sessions Judge relying upon the evidence produced by the prosecution as also the dying declaration of the deceased Ex.PW12/A recorded by the Metropolitan Magistrate held the appellant guilty of murder of deceased Ashraf punishable u/s 302 IPC and sentenced to undergo life imprisonment accordingly.

The learned Counsel for the appellant has submitted that the learned Additional Sessions Judge has returned the finding of conviction against the appellant mainly on the basis of the dying declaration of the deceased Ex.PW12/A made before the Metropolitan Magistrate and the eye witness account of occurrence given by PW4 Mubarak. She has submitted that the Trial Court has failed to take notice of the fact that PW4 Mubarak is not a reliable witness as his testimony suffers from various contradictions and infirmities and also that the dying declaration Ex.PW12/A does not inspire confidence as it is contradictory to the earlier dying declarations made by the deceased to PW4 Mubarak and PW5 Nissar Ahmed while he was being brought to the Hospital and subsequently to the Doctor concerned who initially attended to the deceased at JPN Hospital and prepared his MLC Ex.PW10/A.

Expanding on the argument, she has submitted that PW4 Mubarak and PW5 Nissar Ahmed in their respective testimonies have deposed that while the deceased was being brought to the Hospital, he was complaining and murmuring that acid had been thrown upon him, which according to her is the first dying declaration of the deceased in which he did not name the appellant. From this, she has urged us to infer that, the Trial Court ought to have concluded that the deceased was not aware of the identity of the person who had thrown acid upon him. She has submitted that even before the attending Doctor at JPN Hospital, the deceased did not name the appellant as the culprit. In support of this contention, she has drawn our attention to the MLC of the deceased Ex.PW10/A wherein the attending Doctor has endorsed that the patient was brought to the hospital with alleged history of sustaining burns when someone threw acid over him while he was defecating near Shop No. 57 Ram Nagar. She has also pointed out that on the MLC, Doctor has mentioned that the information recorded in the MLC was given by the patient himself and that the patient has no history of loss of consciousness. From this, according to the learned Counsel for the appellant, it is apparent that when the deceased reached at JPN Hospital, he was fully conscious and he himself narrated the history regarding his burn injuries to the Doctor wherein he did not name the appellant. She has submitted that had the appellant actually thrown acid upon the deceased, he would have definitely named him in the alleged history given to the Doctor as the culprit, therefore, according to her this is a case of contradictory dying declarations and as such the appellant is entitled to the benefit of doubt.

We do not find any merit in this contention. So far as the testimony of PW4 Mubarak and PW5 Nissar Ahmed to the effect that on the way to the Hospital deceased was murmuring that acid has been thrown on him. It cannot be termed as a dying declaration in true sense because PW4 Mubarak has also said in his cross-examination that on the way, the deceased was unconscious and he was murmuring that acid has been thrown on him. That being the case, murmuring of the accused at best was the statement of a semi-conscious person, therefore, it cannot be termed as dying declaration of the deceased. So far as second dying declaration in the form of endorsement on the MLC is concerned, it cannot be given much weightage, firstly, because the Doctor concerned who had allegedly made the endorsement has not been produced as a witness. Secondly, when a seriously injured patient is brought to the hospital casualty, the priority of the Doctor is to attend to the patient to save his life and he is not expected to ask for the complete details of the incident, therefore, non-mention of name of the appellant as culprit in MLC cannot be treated as a contradiction so as to cast doubt upon the dying declaration recorded by the Metropolitan Magistrate. Perusal of the dying declaration Ex.PW12/A would reveal that in the aforesaid dying declaration, the deceased has given the detailed account about the manner in which the occurrence had taken place. The Magistrate in her statement as PW12 has categorically stated that on reaching the Hospital on 21.11.1987 at about 4.20PM, she recorded the dying declaration of the injured Ashraf after he was identified by SI Durga Dutt and, Doctor Rajbir had declared injured Ashraf fit for statement. She has proved the relevant endorsements signed by the Investigating Officer and the Doctor as Ex.PW12/B and PW12/C. We, therefore, find no reason to disregard the dying declaration Ex.PW12/A which was recorded by a Judicial Magistrate after Ashraf was declared fit for making statement.

The learned Counsel for the appellant has further argued that perusal of the death summary of the deceased prepared by the Doctor concerned would show that the deceased died because of 60 per cent acid burns with septicaemia and during treatment, he was administered antibiotics and sedatives. She has submitted that the incident took place on 20.11.1987 and the deceased died on 25.11.1987 at about 11.15 PM and during said period, as per the death summary, the patient was put on the dose of antibiotics and sedatives, therefore, it can be easily inferred that the deceased at the time of recording of his statement u/s 164 Cr.P.C. by the Metropolitan Magistrate which is being treated as dying declaration (Ex.PW12/A) was under sedation and as such he was not in fit state of mind to make the dying declaration, therefore, also learned trial Judge ought to have held that dying declaration Ex.PW12/A did not inspire confidence.

We are not impressed with this argument. A perusal of the Certificate Ex.PW12/B/12/C would show that when the Metropolitan Magistrate reached at JPN Hospital on 21.11.1987 at about 4.20 PM, patient Ashraf, who was on bed No. 13, Burn Ward No. 11, LNJP Hospital, was identified before the Metropolitan Magistrate by SI Durga Dutt and Doctor Rajbir Singh certified him to be fit for making statement. In view of the aforesaid certification Ex.PW12/B and PW12/C and the fact that the concerned Judicial Magistrate in her testimony has stated that she had satisfied herself about the mental condition of the patient, we find no reason to discard the dying declaration Ex.PW12/A on the ground that patient was not in fit mental condition to make the dying declaration. Thus, we are of the view that the learned Additional Sessions Judge has rightly relied upon the dying declaration.

The learned Counsel for the appellant has submitted that as per the testimony of Investigating Officer, he admittedly visited the spot of occurrence at 2.00 PM where he conducted investigation, recovered the burnt clothes of the deceased and prepared the rough site plan. Thereafter, he visited the Police Station and also went to the Hospital and from there, he went to the court for moving an application for recording of the dying declaration of the deceased and as per the statement of PW12 Smt. Urmila Rani, the then Metropolitan Magistrate, she recorded the dying declaration of the deceased at 4.20 PM. She has submitted that so much activity on the part of the Investigating Officer is not possible within a short span of two hours and twenty minutes, therefore, the investigation is tainted. We do not find any substance in this contention. It is common knowledge that traffic condition in Delhi in the year 1987 was not so bad, there was not much traffic congestion on roads, therefore, travelling time in those days from one place to other was quite less. There is not much distance between the Police Station, place of occurrence and JPN Hospital, therefore, it is not surprising that Investigating Officer had managed to visit the spot of occurrence, seized the burnt clothes, prepared rough site plan and after visiting the Police Station and the Hospital reached the court well in time to move application for recording of dying declaration of the deceased, otherwise also, there is no reason to disbelieve the testimony of PW12 Smt. Urmila Rani, the then Metropolitan Magistrate who is categoric in her deposition that she recorded the dying declaration at 4.20 PM on 21.11.1987.

The second limb of argument of the learned Counsel for the appellant is that the eye witness account of the occurrence given by PW4 Mubarak is not worthy of any credence because his testimony suffers from various contradictions and infirmities. Expanding on the argument, she has submitted that according to PW4 Mubarak, he witnessed the incident from the roof of Shop No. 55/56 while he was urinating. She has submitted that the witness has stated that she saw appellant Harbhajan Singh throwing acid on the deceased with a can while the deceased was defecating at the nali on the backside of Shop No. 57. She has pointed out that aforesaid version of PW4 Mubarak is contradicted by the version of the deceased in his dying declaration Ex.PW12/A, wherein the deceased has stated that acid was thrown upon him by the appellant while he was washing his hands with water from bottle after easing himself. She has further pointed out that PW4 Mubarak has stated that he lifted the burnt clothes of victim from near spot of occurrence and placed them in Shop No. 57, which he later on handed over to the Investigating Officer, which version is contradictory to the version of PW5 Nissar Ahmed who has stated that the Investigating Officer had lifted and seized the burnt clothes of Ashraf from the spot of occurrence. She has submitted that in view of the aforesaid contradictions, the Trial Court ought to have rejected the testimony of PW4 Mubarak being unworthy of credit. We do not find any force in this contention of the learned Counsel for the appellant. The contradictions pointed out by the appellant are minor in nature and do not go to the root of the case. Perusal of the MLC Ex.PW10/A would show that it was PW4 Mubarak who had accompanied the deceased to the Hospital, therefore, his presence at the spot of occurrence at the relevant time cannot be doubted. Otherwise also, if the testimony of PW4 Mubarak is analysed in the background of other evidence, it appears natural and the minor contradictions which have been pointed out by the learned Counsel for the appellant are of no consequence and can be attributed to failure of memory due to lapse of time.

The learned Counsel for the appellant has further submitted that admittedly the occurrence took place in winter season on 21.11.1987 at about 9.30 PM. She has pointed out that as per the testimony of PW7 Head Constable Raghbir, Police Photographer when he went to photograph the place on the same night, it was total darkness and that the photographs taken by him do not show any bulb at the electric pole located near the spot of occurrence. She has further pointed out that PW6 Balbir Singh, Draftsman in his cross-examination has stated that PW4 Mubarak had told him that he had seen the incident in the light emanating from the electric pole and not from the ventilators. She has submitted, that being the case, PW4 Mubarak could not have seen the occurrence from the roof of Shop No. 55/56 as there was no electric bulb on the electric pole located near the spot.

There is no merit in this contention, particularly, when PW4 Mubarak has categorically stated that he witnessed the occurrence in the light which was coming out from ventilators and windows in the rear side of cluster of the shops. Otherwise also, there is nothing on record to suggest that PW4 Mubarak had any motive or reason to depose falsely against the appellant. Appellant in his statement u/s 313 Cr.P.C. has tried to impute motive to PW4 Mubarak for deposing falsely against him by stating that he had advanced Rs. 3000/- to Mubarak which he refused to pay despite of demand and since he did not wish to pay back the loan, he had tried to falsely implicate him. Aforesaid explanation, to our mind, is nothing but a vain attempt to cast doubt upon the veracity of the witness. Had the appellant actually lent a sum of Rs. 3000/- to Mubarak, which was a huge amount in 1987, there would have been some documentary proof of the same which has not been produced. We, therefore, do not find the explanation plausible and are of the view that the Trial Court has rightly appreciated the evidence and relied upon the testimony of PW4 Mubarak which is corroborated by the dying declaration made by the deceased.

Lastly, it has been argued that even if the case of the prosecution version is taken to be gospel truth, then also given the facts and circumstances of the case, Section 302 of IPC is not attracted and, at the most, the appellant could be convicted for the offence u/s 326 IPC because by no stretch of imagination, it can be inferred that the appellant had any other intention except to cause grievous injury to the deceased when he threw acid upon him.

The learned Counsel for the State has submitted that the instant case squarely falls within the purview of Section 300 IPC because the appellant had thrown sufficient quantity of sulphuric acid, which is highly corrosive material, resulting in acid burns on major portion of body of the deceased. In support of this contention, he has relied upon the judgment of the Hon''ble Supreme Court in Sudershan Kumar Vs. State of Delhi, In the above referred case before the Hon''ble Supreme Court, the accused had intentionally poured acid on the body of the deceased resulting in acid burns to the extent of 35 per cent of the body. Hon''ble Supreme Court, on consideration of the facts and circumstances, held that such injury in the ordinary course of nature is sufficient to cause death and, therefore, concluded that case of the appellant was squarely covered within the purview of Section 300 Thirdly.

We do not find any merit in the contention of the appellant. Section 300 IPC defines murder, which reads thus:

Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

From the evidence on record, it is established that the appellant threw sulphuric acid from a can on the unsuspecting victim Ashraf. This act on the part of the appellant is sufficient to infer that the appellant threw sulphuric acid on the deceased with intention to cause him bodily injury, i.e., acid burns. It is well-known that sulphuric acid is a highly corrosive material and if it is thrown on a person in sufficient quantity, it is likely to cause death of that person. As per the post mortem report Ex.PW10/D, the deceased had suffered corrosive burns in patches, over face, chest, abdomen, both upper and lower limbs and the back involving 75 per cent surface area of the body which is a clear intention of the fact that a large quantity of sulphuric acid was thrown upon the deceased, therefore, the appellant was expected to know that the resultant injury caused to the deceased because of exposure to the sulphuric acid thrown upon him was likely to cause death of the deceased. Therefore, in our considered view, all the ingredients of Clause Second of Section 300 IPC are fulfilled in this case. Not only this, perusal of the post mortem report as also the statement of PW12 Dr. Anil Aggarwal who conducted post mortem on the dead body of the deceased, it is clear that in the opinion of the Doctor concerned, the burns caused to the deceased were sufficient to cause death in ordinary course of nature. Therefore, even the ingredients of Clause Thirdly of Section 300 IPC are also fulfilled. Thus, we have no hesitation to conclude that the conviction u/s 302 IPC recorded by the learned Additional Sessions Judge is proper.

In view of the discussion above, we do not find any infirmity in the impugned Judgment convicting the appellant u/s 302 IPC. There is no merit in the appeal. It is, accordingly, dismissed.

The appellant Harbhajan Singh 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.