Full Text
HIGH COURT OF DELHI
Sentence)
VIPIN JAIN ..... Petitioner
Through: Mr. K. Singhal, Advocate.
Through: Ms. Radhika Kolluru, APP for State.
JUDGMENT
1. The present revision petition has been filed assailing the impugned judgment dated 04.01.2018 passed by the Addl. Sessions Judge in CRL.A. 54355/2016, whereby the conviction and the sentence of the petitioner under Section 326 IPC were upheld.
2. The present case arises out of FIR No. 18/2005 registered under Section 326 IPC at Police Station Anand Parbat, Delhi. Vide judgment of conviction dated 09.02.2015, the petitioner was convicted under Section 326 IPC and order on sentence dated 26.02.2015, he was directed to undergo SI for five years. The petitioner was also directed to pay fine of ₹2.[5] lakhs, in default whereof to undergo further simple imprisonment for five months. It was also directed that out of the fine paid, an amount of ₹2,00,000/- shall be paid to the victim, namely, Yogesh Jain as 2019:DHC:5903 compensation. The benefit of Section 428 CrPC was granted to the petitioner.
3. It has been informed that the fine of ₹2,00,000/- has been deposited by the petitioner. However, the remaining fine of ₹50,000/- is yet to be paid.
4. The facts and the evidence as noted by the Appellate Court are reproduced as under:- “3. Briefly stated, the facts necessary for the disposal of present appeal (as per the Trial Court record i.e., TCR in short) are that on 14.01.2015 at about 11.30 a.m. at new Rohtak Road, near Gali Kundan Hotel, Anand Prabat, Delhi, appellant, had voluntarily caused grievous hurt to the complainant namely Mr. Yogesh Kumar (in short referred to as complainant) by throwing acid on him. After completion of investigation, charge sheet was filed and cognizance of offence u/s 326 IPC was taken and appellant was summoned. After supplying copies of chargesheet, charge for offence punishable u/s 326 IPC was framed against the appellant, to which he pleaded not guilty and claimed trial. xxx
6. PW-2/complainant has also deposed that on 14.01.2015 at about 11.30 a.m., he, alongwith his friend namely Mayank Jain (PW-5) was going to Barber's Shop and reached near board of Kundal Hotel where appellant threw some chemical on his face, which was being carried by the appellant in a glass and few drops of the same had also fallen on the face of his friend i.e., Mayank Jain (PW-5). PW-5 had also supported version of PW-2. PW-1, father of complainant, had also corroborated the version of PW-2 and PW-5 respectively. Though PW-1 was not present at the spot and had not witnessed the incident but he was told about the incident by his son/PW-2 soon after it had allegedly occurred. PW-3 had deposed mainly regarding the purchase of acid bottle by the appellant on 14.01.2015 at 10.00 a.m and identified the same as Ex. P-1. PW-4 had deposed regarding registration of FIR. PW-6 Dr. Harish Kumar, Senior Surgeon, Safdarjung Hospital, identified the signature of Dr. Abhishek Sharma on MLC Ex. PW-6/A, as MLC was prepared by Dr. Abhishek Sharma, qua whose handwriting and signature, PW-6 was aware. He also stated that injuries were dangerous in nature as they were caused by acid burn and were on face, neck and shoulder. PW-7 deposed regarding the recovery of bottle containing acid and polythene bag containing powder, from the roof of the house of the appellant. PW-10 had accompanied the investigating officer (IO) during the investigation of this case. PW-11 is the IO of this case and he had deposed regarding investigation conducted by him. PW- 12, from FSL, who had examined the exhibits sent to him, and proved his report Ex. PW-12/A and as per testimony of PW-12, all the exhibits, except Ex. P[5], were found containing Sulphuric Acid.
7. On the other hand, DW-1 deposed that no such incident had taken place on 14.01.2005. DW-2 deposed that appellant was working with him (DW-2) and he was present in their factory on 14.01.2005 from 08.30 a.m till 07.30 p.m. DW-3 deposed that complainant had met with an accident on 14.01.2005 at about 12.00-12.15 p.m near his house.
5. A perusal of the testimony of Yogesh Jain (PW-2) & Mayank Jain (PW-5) would reveal that the incident occurred on 14.01.2015, when the petitioner had thrown acid on the face of Yogesh Jain, the complainant. In this process, few drops also fell on the face of Mayank Jain who was accompanying Yogesh Jain.
6. The complainant rushed back to the shop of his father, i.e. Bharat Jain (PW-1), who on seeing the condition of his son, embraced him and resultantly his clothes also came in touch with the acid and got burnt. The Investigating Officer had seized the clothes of the aforesaid persons during investigation. As per the FSL report, proved by Sri Narain (PW- 12), Sulphuric Acid was found on all the exhibits except Exhibit P-5, which was found to contain Sodium Hydroxide.
7. The case of the prosecution was duly supported by the testimony of Ram Niwas (PW-3), who deposed that the petitioner was working as a labour and on the date of the incident i.e. 14.01.2015, the petitioner took one bottle of acid from his shop at 10:00 a.m. for the purpose of cleaning the drain. He identified the seized acid bottle as Exhibit P-1. The MLC of the complainant was proved by Dr. Harish Kumar Sharma (PW-6), who deposed that the injuries were dangerous in nature as they were caused by acid burns and were appearing on the face, neck and shoulder of the complainant. Dr. Ajay Kumar Chauhan (PW-8) had examined Yogesh Jain, Mayank Jain & Bharat Jain, on the date of the incident itself, at 12:30 p.m. at Jeewan Mala Hospital. As per his testimony Mayank Jain & Bharat Jain had suffered simple injuries, whereas Yogesh Jain had suffered grievous injuries due to the acid burns.
8. The testimony of the complainant is supported not only by another injured eye witness i.e. PW-5 but also by the MLC as well as the FSL report.
9. Learned counsel for the petitioner contended that the petitioner was not present at the spot and was rather falsely implicated. He submitted that the petitioner had produced a defence witness i.e. DW-2, who stated that the petitioner was present in his factory on 14.01.2015 from 8:00 a.m. to 7:30 p.m. However, a perusal of the record reveal that the petitioner himself had not taken any such stand at the time of recording of his statement under Section 313 Cr.P.C.
10. Learned counsel for the petitioner also contended that the recovery of the acid bottle from the open space makes the recovery doubtful. He also contended that the glass was not recovered by the I.O. As per disclosure, the glass was thrown away by the petitioner in the Bharat Nagar Nallah (drain). I find no fault in the view of the trial court that even if recovery of acid bottle is ignored, the oral testimonies of the complainant, the injured eye witness and Ram Niwas (the shop owner) duly corroborated by the MLC and the FSL reports, leave no doubt that the injuries suffered by the complainant were caused by the petitioner.
11. Learned counsel for the petitioner urged that since the petitioner has paid the compensation awarded, his sentence may be reduced. In support of the submission, reliance was placed on the decision in Ravada Sasikala Vs. State of Andhra Pradesh & Anr. reported as (2017) 4 SCC
546. It was urged that in the aforesaid case, the accused was sentenced to one year of imprisonment alongwith a fine of ₹1,00,000/-.
12. A perusal of the captioned case would show that the trial court had awarded a sentence of one year to the accused and he was further directed to a pay a fine of ₹5,000/-. In appeal, the High Court had reduced the sentence to the period of 30 days already undergone, while maintaining the sentence of fine. On being challenged, Supreme Court set aside the order of reduction of sentence awarded by the High Court and restored the sentence of one year awarded by the trial court.
13. While affirming the earlier enunciation of law on the appropriateness of the quantum of sentence, it was further held as under:- “20. Though we have referred to the decisions covering a period of almost three decades, it does not necessarily convey that there had been no deliberation much prior to that. There had been. In B.G. Goswami v. Delhi Admn., the Court while delving into the issue of punishment had observed (SCC p. 89 para 10) that punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentence.
21. The purpose of referring to the aforesaid precedents is that they are to be kept in mind and adequately weighed while exercising the discretion pertaining to awarding of sentence. Protection of society on the one hand and the reformation of an individual are the facets to be kept in view. In Shanti Lal Meena v. State (NCT of Delhi), the Court has held (SCC p. 192 para 20) that as far as punishment for offence under the Prevention of Corruption Act, 1988 is concerned, there is no serious scope for reforming the convicted public servant. Therefore, it shall depend upon the nature of crime, the manner in which it is committed, the propensity shown and the brutality reflected.
22. The case at hand is an example of uncivilized and heartless crime committed by respondent No. 2. It is completely unacceptable that concept of leniency can be conceived of in such a crime. A crime of this nature does not deserve any kind of clemency. It is individually as well as collectively intolerable. Respondent No. 2 might have felt that his ego had been hurt by such a denial to the proposal or he might have suffered a sense of hollowness to his exaggerated sense of honour or might have been guided by the idea that revenge is the sweetest thing that one can be wedded to when there is no response to the unrequited love but, whatever may be the situation, the criminal act, by no stretch of imagination, deserves any leniency or mercy. Respondent No. 2 might not have suffered emotional distress by the denial, yet the said feeling could not to be converted into vengeance to have the licence to act in a manner like he has done.
23. In view of what we have stated, the approach of the High Court shocks us and we have no hesitation in saying so. When there is medical evidence that there was an acid attack on the young girl and the circumstances having brought home by cogent evidence and the conviction is given the stamp of approval, there was no justification to reduce the sentence to the period already undergone. We are at a loss to understand whether the learned Judge has been guided by some unknown notion of mercy or remaining oblivious of the precedents relating to sentence or for that matter, not careful about the expectation of the collective from the court, for the society at large eagerly waits for justice to be done in accordance with law, has reduced the sentence. When a substantive sentence of thirty days is imposed, in the crime of present nature, that is, acid attack on a young girl, the sense of justice, if we allow ourselves to say so, is not only ostracized, but also is unceremoniously sent to “Vanaprastha”. It is wholly impermissible”.
14. The petitioner in the present case cannot claim parity with the aforesaid case as he had been granted SI for five years by the trial court. In the captioned case, Supreme Court noting the gravity of acid attack cases restored the sentence awarded by the trial court.
15. In State of H.P. Vs. Vijay Kumar reported as (2019) 5 SCC 373, Supreme Court while upholding the sentence of RI for five years enhanced the amount of compensation to be paid by the accused besides awarding compensation as admissible under Victim Compensation Scheme by the State.
16. I do not find any illegality or perversity in the judgment passed by the trial court and upheld by the appellate court, the petition is accordingly dismissed.
17. The trial court noted that on account of the burn injuries, the face of the complainant has been permanently disfigured. The complainant is stated to have undergone several operations and has spent more than ₹18 to ₹19 lakhs on the surgeries. On account of excessive burn injuries, skin from various parts of his body has been used for the grafting, which has resulted in disfigurement of the other body parts as well.
18. The victim of acid attack does not suffer injury for few weeks or month, but for entire life. In Laxmi Vs. Union of India and Ors. reported as (2014) 4 SCC 427, the Supreme Court while emphasizing the need for rehabilitation of the victims or their dependents held as under:- “12. Section 357A came to be inserted in the Code of Criminal Procedure, 1973 by Act 5 of 2009 w.e.f. 31.12.2009. Inter alia, this Section provides for preparation of a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
13. We are informed that pursuant to this provision, 17 States and 7 Union Territories have prepared “Victim Compensation Scheme” (for short “the Scheme”). As regards the victims of acid attacks, the compensation mentioned in the Scheme framed by these States and Union Territories is un-uniform. While the State of Bihar has provided for compensation of Rs.25,000/- in such scheme, the State of Rajasthan has provided for Rs.[2] lakhs of compensation. In our view, the compensation provided in the Scheme by most of the States/Union Territories is inadequate. It cannot be overlooked that acid attack victims need to undergo a series of plastic surgeries and other corrective treatments. Having regard to this problem, learned Solicitor General suggested to us that the compensation by the States/Union Territories for acid attack victims must be enhanced to at least Rs. 3 lakhs as the after care and rehabilitation cost. The suggestion of learned Solicitor General is very fair.
14. We, accordingly, direct that the acid attack victims shall be paid compensation of at least Rs.[3] lakhs by the State Government/Union Territory concerned as the aftercare and rehabilitation cost. Of this amount, a sum of Rs.[1] lakh shall be paid to such victim within 15 days of occurrence of such incident (or being brought to the notice of the State Government/Union Territory) to facilitate immediate medical attention and expenses in this regard. The balance sum of Rs.[2] lakhs shall be paid as expeditiously as may be possible and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories shall ensure compliance of the above direction.
15. The Chief Secretaries of the States and Administrators of the Union Territories shall take necessary steps in getting this order translated into vernacular and publicise the same appropriately for the information of public at large. List the matter on 3-12-2013.”
19. In exercise of powers conferred under Section 357A of CrPC, 1973, the Lieutenant Governor of NCT of Delhi in coordination with the Central Government approved the Delhi Victim Compensation Scheme, 2015 for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. The State, through Delhi State Legal Services Authority, is directed to provide compensation to the complainant in accordance with the aforesaid Scheme within a period of two months from the date of passing of this judgment.
20. A copy of this judgment be communicated to the trial court as well as to the Member Secretary, Delhi State Legal Services Authority for information and compliance. A copy of this order be also provided to the petitioner through Jail Superintendent at no cost.
JUDGE NOVEMBER 13, 2019 p’ma/na