Ram Niwas vs State

Sanjay Kishan Kaul, J.—The obsession of the appellant at the young age of 21 years with a girl Shobha made him commit the heinous crime of throwing acid on her which ultimately caused her death.

The facts in brief are that the appellant had an infatuation with Shobha and wanted to marry her. His overtures were spurned by Ms.Shobha. On the fateful day of 03.06.1988 at about 1.00 p.m. when Ms.Shobha was coming out from her home and going to her roof, the appellant came out of his room and catching hold of her, pulled Shobha inside the room. He threatened her with dire consequences if she refused his love and thereafter took out a bottle containing acid from underneath a box and poured it on her. In the process, the appellant also suffered some acid burns. Ms.Shobha sustained 90% burns and ultimately succumbed to the injuries on 4/5.7.1988.

Head Constable Shyam Lal received a telephonic information pertaining to the admission of the deceased in JPN Hospital which was recorded as DD No. 16A which was entrusted to S.I. Soji Ram. At about 4.30p.m., S.I. Chila Ram received a rukka Ex.PW11/A from S.I. Soji Ram, on the basis of which the FIR Ex.PW11/B was recorded. The case was initially registered u/s 307 IPC which was subsequently converted to 302 IPC on the demise of Ms.Shobha. We may notice that prior to her demise, S.I. Soji Ram recorded the statement of the deceased in the presence of Constable Yashbir Singh, PW12, which came to be treated as the dying declaration and formed the basis of the FIR. The SDM Parimal Rai recorded the dying declaration on 18.6.1988 when the deceased was lying admitted in JPN Hospital with 90% burns. Both these dying declarations implicate the appellant. The dying declaration was recorded after ensuring that Ms.Shobha was in a position to make her statement and after due certification to that effect by the doctors. The SDM obtained the left thumb impression of Ms.Shobha.

On the charge-sheet being filed, charges were framed. The appellant pleaded innocence and claimed trial. On completion of trial, the appellant was convicted u/s 302 IPC vide judgment of the learned Additional Sessions Judge dated 29.1.1996 and was sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/-and in default thereof undergo SI for three months as per the order of sentence dated 29.1.1996. The appellant aggrieved by the same has preferred the present appeal.

Learned Counsel for the appellant, on instructions from the appellant and as per the synopsis filed in Court has pleaded guilty to the act of throwing acid on the deceased in the manner set out by the prosecution. He thus gives up all the grounds of challenge to the order of conviction except to plead that in the given facts of the present case, the conviction ought to have been u/s 304 IPC and not u/s 302 IPC. We have heard the submissions of learned Counsel for the parties in this context and the endeavour of learned APP was to support the impugned judgment.

Learned APP emphasized that the act of the appellant in throwing acid on the deceased on account of his obsession with her calls for no mercy in view of the judgment of the Supreme Court in Sudershan Kumar Vs. State of Delhi, which has been relied upon by a Division Bench of this Court in Crl. A. No. 172/2008, Baljeet Kumar v. State (Govt. of NCT of Delhi) decided on 6.8.2009, where conviction u/s 302 of the IPC has been upheld. On the other hand, learned Counsel for the appellant has relied upon the judgment of another Division Bench of this Court in Udai Singh Vs. State,

The judgment in Udai Singh''s case (supra) is factually somewhat similar inasmuch as the endeavour of a man to get the affection of a woman and the consequent failure to do so resulting in his throwing acid on her and causing her death after she suffered 55% burns gives a similar background. However, if the judgment is scrutinized closely, the reasoning why the conviction was changed from one u/s 302 IPC to Section 304 Part I IPC is set out in Para 32 which reads as under:

From the aforesaid judgments of the Hon''ble Supreme Court it is clear that in deciding the question whether the offence of culpable homicide amounts to murder or not the Hon''ble Supreme Court considered the medical opinion regarding the nature of injuries as well as the period after which death of the victim takes place as very important factors and depending upon the facts and circumstances of each case the conviction of the accused was converted from Section 302 IPC to either 304(I) IPC or 304(II) IPC. In the case before us, the medical opinion as to whether the burn injuries sustained by the deceased were sufficient in the ordinary course of nature is absent and not only that, as noticed already, even the death of the deceased had taken place after two months of occurrence and the cause of death was opined by the autopsy surgeon to be due to shock and secondary infection due to burn injuries. There is no evidence adduced by the prosecution regarding the treatment given to the deceased from the date of the incident till her death. In these circumstances, we are of the view, that none of the four Clauses of Section 300 IPC which convert the offence of culpable homicide to ''murder'' can be said to be existing. Therefore, the offence which the accused can be said to have been committed is culpable homicide not amounting to murder.

If we look to the factual matrix of the present case, we find that neither the MLC nor the post mortem report has been proved by examining the doctors. The death occurred about a month after the incident of throwing acid. The question which arises is whether the burn injuries sustained were sufficient in the ordinary course of nature to cause death, which could have been opined by a medical expert. The failure of the prosecution to examine the doctor who conducted post mortem has left a lacuna in the case. This lacuna undoubtedly has caused a prejudice to the case of the prosecution since this aspect does not stand proved and thus the principles laid down in Udai Singh''s case (supra) do apply to the present case.

Despite the aforesaid, we are not inclined to take a lenient view while converting the conviction from one u/s 302 IPC to Section 304 Part I IPC as in Udai Singh''s case (supra) and in view of the heinous nature of the crime, convict the appellant to undergo imprisonment for 10 years for causing death of the deceased Ms.Shobha and also to pay fine as directed by the trial Court.

We find from the nominal roll that the appellant has undergone a sentence of over 11 years and thus has served the sentence imposed by us and thus do not require to be taken into custody. The bail bond and surety thus stand discharged.

The appeal is allowed to the aforesaid extent and the order of conviction and sentence stand modified accordingly.