Acid Attack; Simran @ Meena Khan Vs. State [Delhi High Court, 27-05-2016]

Acid Attack – Delhi Victims Compensation Scheme, 2015 – the compensation is not to be awarded only in terms of the physical injury, the Court has also to take note of victim‟s inability to lead a full life and to enjoy those amenities which is being robbed of her as a result of the acid attack.


IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM: HON’BLE MS. JUSTICE SUNITA GUPTA

Date of Decision: 27th May, 2016

CRL.A. 179/2011 SIMRAN @ MEENA KHAN ….. Appellant Through: Mr.Mukesh Kalia with Ms.Astha, Advocates versus STATE ….. Respondent Through: Mr.Akshai Malik, APP for the State alongwith SI Om Prakash from Police Station Amar Colony, Delhi. AND CRL.A. 461/2011 RAJU @ QAYOOM ….. Appellant Through: Mr.Mukesh Kalia with Ms.Astha, Advocates versus STATE ….. Respondent Through: Mr.Akshai Malik, APP for the State alongwith SI Om Prakash from Police Station Amar Colony, Delhi. AND CRL.A. 1393/2012 ANNU MUKHERJEE ….. Appellant Through: Ms.Kamlesh Jain, Advocate versus STATE & ORS. ….. Respondents Through: Mr.Akshai Malik, APP for the State alongwith SI Om Prakash from Police Station Amar Colony, Delhi. Mr.Mukesh Kalia with Ms.Astha, Advocates for R- 2&3.

JUDGMENT

SUNITA GUPTA, J.

“Envy is the desire to have what someone else has. Jealousy is the fear of losing what you have. The more insecure you are about yourself or your relationship, the more jealous you are, because you are afraid to lose your significant other to someone else.”

― Oliver Markus

1. Present is a glaring example of another brutal inhuman attack with acid on a young girl of hardly 25 years of age, out of jealousy giving rise to the present appeals.

2. Simran @ Meena Khan (hereinafter referred to as “A-1”) and Raju @ Qayoom (hereinafter referred to as “A-2”) assails the judgment dated 15.01.2011 in Session Case No. 49/10 arising out of FIR No.1036/04 PS Lajpat Nagar by which appellants were held guilty of the offence punishable under

Sections 326/120B of Indian Penal Code

(hereinafter referred to as „IPC‟). Appellants were absolved of the offence punishable under Section 307 IPC. Vide order on sentence dated 19.01.2011, they were sentenced to undergo rigorous imprisonment for 5 years and fine of Rs 1 Lac; in default of payment of fine, they were directed to undergo simple imprisonment for 6 months. Further, it was directed that 80% of total fine i.e Rs. 2,00,000/- be released to the victim as compensation for her welfare. The victim has also filed an appeal under Section 372 of Cr.P.C, praying for enhancement of the sentence under Section 326 of IPC being inadequate, grant of adequate compensation and other reliefs.

3. Since all the three appeals are arising out of a common judgment hence, all are taken up together for consideration and being disposed of by this common judgment.

4. The gravamen of the prosecution case, succinctly stated, is as follows:

4.1 Annu Mukherjee (hereinafter referred to as „victim‟) a young girl aged 25 years, worked as a dancer in Rajdoot Hotel, Bhogal. A-1 also worked there as a dancer with other girls. About one month prior to the incident, a quarrel had taken place between victim and A-1 as latter was envious of the former as the former was more beautiful and was a good dancer. During that quarrel A-1 threatened her that if she quarreled with her she would get acid thrown at her and would get her killed.

4.2 According to prosecution on 19.12.2004, as usual victim left her house and boarded her regular autorickshaw at about 7 P.M. to attend the work at Rajdoot Hotel. According to her, A-2, brother of A-1 was already standing near the TSR covering himself with the shawl. As the auto driver started the vehicle. A-2 removed his shawl and threw acid on her head and face from a glass. On falling of that liquid (now proved to be Sulphuric Acid) she received severe burn injuries on her face. When she cried out due to pain, first she was taken to Shahi Hospital then to Apollo Hospital and lastly to Safderjung Hospital.

4.3 While victim was under treatment at Apollo Hospital, on receipt of DD No.12 Ex.PW10/A from security supervisor Apollo Hospital regarding admission of Annu Mukherjee in injured condition due to acid attack, Ct. Balwant Singh (PW9) alongwith ASI Vedpal (PW15) reached Apollo Hospital and recorded the statement of injured (Ex PW1/A) which culminated in registration of First Information Report (Ex.PW13/A) against the accused persons for the offence punishable under Section 307 IPC, and investigation was taken up.

4.4 During the course of investigation, statement of TSR driver Parvez Alam was recorded. Footmat of TSR, Pant and shirt of Parvez Alam were seized. A-1 was arrested on 20.12.2004. At the instance of A-1, A-2 was arrested on 21.12.2004. Pursuant to his disclosure statement Ex.PW8/C, he got recovered one shawl, one jeans and pant from H.No.WZ-666 Padam Basti, Nangal Rai. He further got recovered a plastic bottle containing very little quantity of acid from garbage bin of gate no.2 near Esckon Temple, Garhi. On 07.01.2005, brother of injured produced a grey colour jersey, one chunni, pyzama and suit belonging to Annu Mukherjee. During the course of investigation, exhibits were sent to FSL. After completing investigation, chargesheet was submitted under Section 307/326/120B IPC.

5. On committal of the case, on going through the chargesheet and accompanying material, the learned Sessions Judge framed charges under Sections 307/326/120-B of the IPC against both the accused and on their denial of charges and claim for trial, they were tried in S.C.49/10.

6. In order to establish the guilt of the accused, the prosecution has relied upon evidence of 18 witnesses. All the incriminating circumstance was put to accused persons under Section 313Cr.P.C but they pleaded innocence and alleged false implication in the case. They did not prefer to lead any defence evidence.

7. On considering and appreciating the entire evidence and after hearing arguments on both the sides, the trial Court held that though the prosecution has proved its case beyond reasonable doubt that it was the accused/appellant who threw acid on victim resulting in severe acid burn injuries on her person, the offence does not fall under Section 307 IPC, as put forth by the prosecution because the concerned doctor who prepared the MLC could not be examined due to non-availability, moreover, accused had no intention to kill her but only wanted to hurt her by doing such an act due to which she could not look better and dance better than her but one punishable under Section 326 IPC. Accordingly, he sentenced the appellants/accused persons, as noted above.

8. As already noted, accused Nos. 1 and 2 have challenged their conviction and sentence by filing separate appeals bearing Nos. 179/2011 and 461/2011, whereas the victim has challenged the inadequacy of the sentence and compensation for the offence punishable under Section 326 of IPC by filing Appeal No.1393/2012.

9. Taking me through the entire evidence on record and the impugned judgment, the learned Counsel for the accused vehemently contended that the impugned judgment of conviction is contrary to law and evidence on record; that the approach of the Trial Court in holding the accused guilty for the offences punishable under Sections 326 and 120B of IPC is wholly untenable and perverse resulting in grave injustice to the appellants. It is contended that the Court below has committed grave and serious error in not taking into consideration the material contradictions of various prosecution witnesses. Coming to the motive aspect, it is submitted that it is too flimsy and unbelievable, in the sense, no person would resort to such drastic act of throwing acid on victim, merely because she had a quarrel one month prior to the incident. A-1 was not even present at the time of incident. A-2 had no motive to commit crime. Owner of the hotel PW-7 does not speak about any quarrel between A-1 and complainant. PW4 and PW5 have not supported the case of prosecution. Incident took place in the evening of December at about 7.00 pm hence there was no sufficient light. It was a case of mistaken identity. Except for the observation of the court that complainant has lost her eyesight, there is no medical evidence to prove that she lost her eyes in this incident. Hence, it is submitted that the entire approach of the Trial Court was not only perfunctory but perverse one and as such, the impugned judgment of conviction and sentence passed are liable to be set aside and accused are entitled for acquittal on the ground of benefit of doubt.

10. On the other hand, the learned Additional Public Prosecutor appearing for the state argued in support of the prosecution case mainly relying upon the evidence of the victim PW1 and independent evidence of other injured eyewitness PW5. He also submitted that the Trial Court has considered the evidence in proper perspective to hold that it is A-1 who conspired to kill the girl and in pursuance thereof, accused/ A-2 threw acid on victim in the evening of 19/12/2004 at about 7.00 p.m. As such, appeals filed by accused, being devoid of merit, deserve dismissal.

11. At the outset, it is to be noted that there is not much dispute as to the factum of Annu Mukherjee receiving acid burn injuries at about 7:00 p.m. on 19th December 2004 near her house. The First Information Report, the evidence of all the prosecution witnesses especially the evidence of the doctors PW17, PW18, the evidence of the victim PW1, evidence of injured eyewitness PW5 and evidence of another eyewitness PW4 who came to spot immediately after the incident, beyond any doubt shows that on the date of incident victim did receive acid burns on her person and clothes. It is also not much in dispute that due to the burns, her entire face was burnt and has become totally scarred and both eyes were damaged. It is to be noted that it is nobody’s case that the acid fell on her accidentally or she poured it on herself. As such, it is definite that somebody poured the acid on her.

12. Incidentally, the fact that A-1 and PW-1 Annu Mukherjee knew each other and worked together in Hotel Rajdoot where they used to work as dancers although is disputed by A-1 but PW1 has deposed so and there is no challenge to her testimony in this regard. Even otherwise, PW7 Kamal Sharma, Manager, Hotel Rajdoot deposed that A-1 and Annu Mukherjee were working as dancers in the Hotel. Although both of them were not regular employee but they used to perform dance in the restaurant as and when needed and they were paid for their performance for number of days. Hence, it was established that A-1 and Annu Mukherjee (PW-1) were working as dancers in Hotel Rajdoot.

13. The moot question before me is as to who caused the injuries on victim with acid and more importantly I have to see whether prosecution has succeeded in proving that it is the accused persons alone who did it.

14. The star witness of prosecution is the victim herself. In her evidence she has stated that she was working as a dancer in Rajdoot Hotel, Bhogal where accused (A-1) was also working as a dancer with other girls. Prior to this incident about one month back, a quarrel had taken place between her and A-1 as she was envious of her and was more beautiful and was a good dancer. During that quarrel, A-1 threatened her that if she quarreled with her, she would get acid thrown at her and would get her killed. She further stated that on 19.12.2004 in the evening she left the house and boarded her regular autorickshaw of one Parvez Alam (PW-5). A-2 was already standing near the TSR covering himself with the shawl. As the auto driver started the vehicle, A-2 after removing his shawl threw acid on her head and face from a glass. She received injury on her face and has lost her vision of both eyes and her face has been disfigured due to injuries. She identified voice of both the accused persons after having short conversation with both of them on the direction of the court.

15. At the outset, it is to be noted that this victim has withstood the exhaustive and searching cross-examination by the accused persons in spite of her present physical condition. On scrutinizing the testimony of the victim, it is clear that no material discrepancies/infirmities could be elicited in her cross-examination. Her entire statement reflects her sense of understanding and wisdom. There are no valid reasons to disbelieve the same.

16. The law is well settled that the evidence of injured witness has greater evidentiary value and unless compelling reasons exist, his/her testimony is not to be discarded lightly. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his/her presence cannot be doubted. His/her statement is generally considered to be very reliable and it is unlikely that he/she will spare the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he/she has sustained injuries at the time and place of occurrence and this lends support to his/her testimony that he/she was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his/her evidence on the basis of major contradictions and discrepancies therein.

17. In