1. In this nation where great tradition and culture exists, where right from ancient times, it is stated l= iwT;ars ukjh jears r= nsor A (where woman is given respect, only in that place God resides) yet another brutal inhuman attack with acid on a young girl of hardly 20 years of age, has given rise to the present appeals.
2. Being aggrieved by the judgment and sentence dated 6.5.2005 holding the accused guilty of the offence under Section 326 of IPC, and sentencing him to undergo R.I. for 5 years and 3 months with a fine, the accused has filed Criminal Appeal No. 1239/2004, whereas the State aggrieved by acquittal of the accused for offence under Section 307 of IPC, has filed Criminal Appeal 1065/2004. The State has also filed Criminal Appeal No. 1066/2004 under Section 377 of Cr.P.C, praying for enhancement of the sentence under Section 326 of IPC. on the ground that the sentence is inadequate. Since we have to consider same evidence and same judgment to decide these three appeals, all are taken up together for consideration and being disposed of by this common judgment.
3. The case of the prosecution in brief is as follows:
Haseena a young girl hardly aged 20 years, who had finished computer course while studying B.Com., I Year, was working in a computer office called Neha Computers of which the accused was the proprietor. Similarly P.W.8 - Bindu was also working there. After about one year eight months as the said office incurred a loss, Haseena left the same and started working at Satish Industries situated at H.M.T, Layout. It is alleged that the accused started pestering her to leave the new job and start working in the house for which he would provide a computer. This offer was rejected by Haseena. It is alleged that on a number of occasions the accused came to her house and repeated his offer. For which Haseena informed him that as she is working in Satish Industry comfortably, she does not want to leave the job. Enraged by the same, it is alleged that about 20 days prior to the incident the accused threatened her with dire consequences for not accepting his offer.
4. According to prosecution on 20.4.1999, as usual Haseena left her house at about 8 a.m, to attend the work at Satish Industry. On that day she took a lift from one Krishna an elderly neighbour who had his Industry called Mahaveer Industries near Satish Industry. According to Haseena at about 8.25 a.m. when she was near the gate of Satish Industry, the accused came on a motorcycle holding a plastic jug and on coining near Haseena, he splashed the contents of the jug on her and went away. On falling of that liquid (now proved to be Sulfuric Acid) she received severe burn injuries on her face, eyes, neck, chest, hands and legs. She also received burn on her clothes. When she cried out due to pain, people nearby came and took her first to H.M.T. and then to Ramaiah and lastly to Victoria Hospitals.
5. While Haseena was under treatment at Victoria Hospital on learning the incident, Narasimhaiah - the P.S.I. and S.H.O. of Jalahalli Police Station goes to Victoria Hospital and records the statement of injured Haseena as per Ex. P.7 and treating the same as the First Information/complaint, registers a case in Crime No. 54/1999 against the accused for the offence punishable under Section 307 IPC, and investigation is taken up.
6. It is to be mentioned that as during the investigation role of three more persons as abettors/Co-conspirators is revealed to Investigating Officer, they were also added as accused Nos. 2 to 4. However, the trial Court has given benefit of doubt to them and since the State has not filed any appeal against their acquittal, we are not concerned with their role and acquittal.
7. Be that as it may during the investigation, statements of witnesses including another injured - eye witness P.W. 1 -Shanmugam, the watchman of Satish Industry are recorded. Since Haseena had revealed the name of the accused/appellant as her assailant, search for him is carried out. The accused is arrested on the same day at about 8.35 p.m. at Chimney Hills Air Force Station. The accused is interrogated and on his voluntary information incriminating articles like the clothes he wore at that time of the incident, the motorcycle used, the acid bottle, the cash receipt for purchasing the acid etc., are seized. After the arrest, as some burn injuries on the hand of accused are noticed, he is also subjected to medical examination and treatment. The Investigating Officer after collecting all the necessary reports and records files, the charge sheet.
8. On committal of the case, on going through the charge sheet and accompanying material, the learned Sessions Judge framed charges under Sections 307, 120-B, 201 r/w Section 34 of the IPC, against all the accused and on their denial of charges and claim for trial, they are tried in S.C. 443/1999.
9. In order to establish the guilt of the accused, the prosecution has relied upon evidence of 28 witnesses, Exs.P. 1 to P.48 and M.Os. 1 to 28, Apart from denying the prosecution case in toto as seen from the answers given by the accused under Section 313 Cr.P.C, the appellant/accused No. 1 has filed his detailed statement under Section 233 of Cr.P.C., inter alia contending that he is innocent and has been falsely implicated by the police creating baseless evidence against him.
10. On considering and appreciating the entire evidence and after hearing arguments on both the sides, as already noted, though the trial Court acquitted accused Nos.2 to 4 giving benefit of doubt to them, held so far as the appellant/accused No. 1 alone is guilty. The trial Court further held that though the prosecution has proved that it is the accused/appellant who threw acid on Haseena resulting in severe acid burn injuries on her person, the offence does not fall under Section 307 IPC, as put forth by the prosecution but one punishable under Sections 326 and 201 IPC. Accordingly, he sentenced the appellant/accused to undergo R.I., for five years and 3 months (the period already undergone by the accused during trial) and also imposed a fine of Rs. 300000/- carrying default sentence. He also sentenced the appellant to undergo R.I. for 2 years with fine for the offence punishable under Section 201 IPC (both the sentences to run concurrently)
11. As already noted accused No. 1 has challenged his conviction and sentence, whereas the State has challenged the acquittal of accused No. 1 for the offence punishable under Section 307 of IPC, as well as inadequacy of the sentence for the offence punishable under Section 326 of IPC.
12. Shri Sandesh Chouta learned Counsel appeared and argued on behalf of the accused and Shri Rudramuni learned Additional State Public Prosecutor appeared and argued for the State.
13. Taking us 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 201 of IPC is wholly untenable and perverse resulting in grave injustice to the accused /appellant. It is contended that the Court below has committed grave and serious error in not taking into consideration the discrepancies in material particulars with regard to the circumferences under which the accused alleged to have thrown that acid on P.W7. It is argued that if the accused was riding a motorcycle, he could not have held the jug in his hand and also poured acid on the victim. Hence the probabilities of the accused committing the crime is very remote. The learned Counsel came upon heavily on the investigating agency and the prosecution for not conducting test identification parade of the accused, especially in respect of P.W1 who was a total stranger to the accused. Hence it is submitted that not holding the T.I.P. is fetal to the prosecution and as such, the evidence of P.W1 especially in respect of identifying the appellant as the accused was unbelievable. In this regard it is also submitted that as witnesses admit that accused was wearing helmet, then his face could not have been seen either by P.W1 or P.W7. 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 P.W7, merely because she refused to work for him, Hence it is submitted that there is suppression of facts by the victim and benefit of doubt ought to have been given to the accused. Nextly, it is contended that the presence of the accused is tried to be established by finding alleged acid burn injuries on his person. It is submitted that evidence of the doctor in this regard is clearly false as it is established by the defence through D.W1 an official from Air Force Station to show that when the accused was to be handed over by the Air Force police to civilian police, it was specifically noted that there were no injuries on accused. As such, the Trial Court committed an error in not considering this aspect, especially when it is the specific case of the accused that the police have created evidence including acid burns against him. 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. In this regard it is also contended that as neither P.W1 nor P.W7 have disclosed the name of the accused at the earliest before the doctor P.W4, no evidentiary value can be attached to the identification said to have been done in the Court. On these among other grounds it is submitted that the judgment of conviction and sentence are liable to be set aside and accused is entitled for acquittal on the ground of benefit of doubt.
14. On the other hand the learned State Public Prosecutor argued in support of the prosecution case mainly relying upon the evidence of the victim P.W7 and independent evidence of other injured eyewitness P.W1, He also submitted that the Trial Court has rightly considered their evidence in proper perspective, so also the circumstantial evidence to hold that it is the accused and accused alone who threw sulphuric acid on PW7 Haseena in the morning of 24 - 4 - 1999 at about 8:25 a.m.
15. However it is submitted that the Trial Court committed an error in acquitting the accused for the offence under Section 307 of IPC and convicting him for a lesser offence punishable under Section 326 of IPC. In this regard it is contended that as the accused had the knowledge as well as the intention to commit murder of Haseena and in this regard has used a deadly corrosive material like sulphuric acid on her face and body, the Trial Court was in error in acquitting him for the said charge of attempt to murder. It is also submitted that even the punishment imposed namely R. I. for 5 years and odd for the offence under Section 326 of IPC, in the light of the grevious nature of injuries especially like losing both the eyesight, disintegration of entire face of a beautiful young girl, is very lenient one, As such, it is submitted that this part of the judgment namely acquittal under Section 307 of IPC and even if it is held that offence is under Section 326 of IPC, the lenient punishment requires reconsideration.
16. In respect of the prayer of the State for conviction under Section 307 of IPC, the learned Counsel for the accused submitted that for the purpose of conviction under Section 307 of IPC, practically all the ingredients of murder except the ultimate result has to be established. It is submitted that the prosecution must establish;
a) existence of intent to commit murder;
b) some steps required to be taken after completion of preparation;
c) steps must be apparent with purpose designed;
d) it must come dangerously nearer to success; and
e) it must fall short of ultimate design.
It is argued that as the prosecution has failed to prove the intent of the accused to commit murder and since there is no evidence as to the main object of the accused to cause death of Haseena, the offence would not fall under Section 307 of IPC. Relying upon a judgment of Orissa High Court reported in A I R 1994 Cr.L.J.2245 it is submitted that that was also a case of acid throwing and the Court has rightly held that the offences under Section 326 of IPC and not under Section 307 of IPC. As such, even if it is held that the accused committed the offence, the conviction need not be altered from Section 326 of IPC to 307 of IPC. So far as sentence is concerned it is submitted on behalf of the accused that at the time of commission of the offence the accused was a young man and in fact had served imprisonment for a period of five years and three months during the trial which is an adequate sentence. It is also submitted that the accused has also deposited the entire fine of Rs. 3,20,000/-. Hence taking into consideration the mitigating factors that accused is a young person, has served substantive sentence and also the fact that he has got aged parents to look after and has a started his life afresh by obtaining a job with great difficulty after coming out of the jail, in the interest of justice, there is no need to enhance the sentence.
17. We have heard both the counsels at length and perused the entire evidence on record.
18. At the outset it is to be noted that there is no much dispute as to the fact of Haseena receiving acid burn injuries at about 8:30 a.m. on 24th April 1999 near the gate of Satish industries. The First Information Report, the evidence of all the prosecution witnesses especially the evidence of the doctors P.W21, P.W28, the evidence of the victim RW7, evidence of injured eyewitness P.W1 and evidence of PWs.19, 20 parents of PW.7, and PW. 13 a neighbour, who came to spot immediately after the incident, beyond any doubt shows that on the date of incident Haseena P.W7 did receive sulphuric acid burns on all over her body and clothes. It is also not much in dispute that due to the burns, her entire face was burnt and has become totally scarred, both eyes are damaged and she has lost the eyesight in both eyes, her upper lip is dissolved, apart from other injuries on her left arm, abdomen, both the thighs. It is to be noted that it is nobody's case that the add fell on her accidentally or she poured it on herself. As such, it is definite that somebody poured the acid on her.
19. Incidentally, the feet that the accused and PW.7 Haseena knew each other and for some time Haseena worked with the accused and after leaving the job started working with Satish industry is also not much disputed by the accused himself. Even otherwise, the evidence of PW.1 the security gateman of Satish industry, PW.3 Jose the former partner of the accused and PW.4 Usha wife of PW.3, PW.9 Rakesh another partner of the accused, PWs. 19 and 20 the parents of Haseena apart from the evidence of PW.7 Haseena herself, clearly establish the same beyond any doubt.
20. Hence, the moot question before us is as to who caused the injuries on Haseena with sulphuric acid and more importantly we have to see whether prosecution has succeeded in proving that it is the accused and accused alone, who did it.
21. As already noted, besides the main victim and complainant PW.7 Haseena whose evidence would be discussed later, prosecution has relied upon the evidence of totally independent witness who is also incidentally injured in the said incident i.e, PW. 1 Shanmugam.
22. According to this witness, he is working as a watchman in Satish Industry for the last 13 years. He states that he knew PW.7 Haseena as she was working in the said industry. According to him, if he is working as the day-watchman he would be near the gate and if doing night duty he would-be having rounds around the industry. According to him, on the 24th of April 1999, he was on day-duty and was at the gate at about 8:15 a.m,, at that time he saw Haseena coming towards the gate and was at the distance of about 5 feet. At that time, one person came on a motorcycle and threw acid from a jug on the girl and went away. It is noted that this witness identifies the appellant/accused no. 1 out of four accused then being tried as the person who came on motorcycle and threw the acid. He further states that immediately the girl held him and since she had acid all over her face and clothes, some of the acid on her clothes touched his right arm and he too received burn injuries. He has also identified the acid burnt clothes of Haseena as well as his own uniform which was also burnt with acid to some extent. He also identifies his signature on the spot mahazar Ex P14.
23. In the cross-examination of this witness nothing damaging about his credibility is elicited. Even no suggestions have been made to this witness as to whether this witness has any personal enmity with the accused, so as to even create doubt about his independent testimony. On the other, it is specifically elicited from this witness that as there is a rule in the industry that all the workers have to be present in the industry by 8:30 a.m. and the manager in fact comes at about 8:25 a.m. and as such he was at the gate around 8:15 a.m. The learned Counsel for the defence has relied upon two statements elicited in the cross-examination viz., the assailant who came on motorcycle was driving the same with both hands and was wearing helmet, Relying upon these statements it is contended that as the assailant was wearing helmet, it was not possible for this witness to identify him. It is also contended that since this witness has admittedly not seen the accused earlier, in the absence of Test Identification Parade held during investigation, evidence of this witness should not have been accepted by the Trial Court.
24. In this regard, it is now well settled that holding of identification parade by the police during the investigation is only to help the police to assure them that their investigation is proceeding in proper direction and this test identification has no substantive evidentiary value, The substantive evidence is the identification in the Court. See: Matru v. State of U.P. reported in AIR 1971 SC 1050, Girijashankar v. The State AIR reported in 1993 SC 2618, Dayasingh v. State reported in AIR 2001 SC 1188. As such, in our view no great importance to be attached for not holding the test identification parade. So far as possibility of not seeing or identifying the face of a person wearing helmet as argued by the learned Counsel for the appellant is concerned, we find absolutely no cross-examination of the witness in this regard when he was in the witness box. Unless the defence elicits some positive or negative answer in this regard from the witness, we cannot speculate as to whether PW. 1 could not see the face of the person on the motorcycle who threw acid on Haseena because as is commonly known helmets may have visor or not. Moreover it is relevant to note that no motive like any previous enemity or ill-will of this witness with the accused is suggested, so as to doubt his independent nature of evidence on the ground of interestedness. It is also to be noted that the fact of PW 1 working as watchman of Satish industry is also not disputed by the accused. Hence, we hold that PW. 1 Shanmugam was the watchman of Satish industry on the date of incident. So far as his presence is concerned, again that is no controversy. Moreover his presence is also tried to be established by the fact that in the same incident he also received acid burns when immediately after acid was poured on PW.7, out of pain or to save herself touched or held him and in the process, some acid which was poured on Haseena also got in touch with the hand of this witness causing burn injuries.
25. In this regard PW.5 Dr. Krishna Kumar of HMT Hospital has deposed that on 20-4-1999 at about 9:30 a.m, he examined this witness PW. 1 and fou nd acid burns on his right forearm up to wrist and has given the wound certificate as per Ex.P4. Except eliciting from this witness that P. W 1 did not give the name of the accused, nothing damaging as to the credibility of this independent doctor is forthcoming. This evidence in our view clearly corroborates not only evidence of PW. 1, but also lends assurance as to the presence of PW. 1, his seeing the accused committing the crime and PW. 1 getting injured almost at the same time. Hence, we find absolutely no material to discard the eyewitness account of the incident from this totally independent and injured witness P.W1 Shamnugam.
26. The next material and most important witness is the victim Haseena PW.7 herself. In her evidence she has stated that she knew the accused Joseph. According to her, after taking B.Com correspondence course, she took training in computers. Before joining Satish industry she was working for 1 1/2 years at Neha industries of which the accused Joseph was the owner. As said Joseph suffered loss in his business, he closed the industry and as such, she joined Satish industry.
27. She further states that on 20/4/99 in the morning she left the house on the scooter of one Krishna (a 58-60 year old neighbour) who dropped her near Mahavir Industry and from there she started walking towards Satish Industry. According to her, few days earlier accused called her and asked her to leave the present job at Satish Industry, but she was not willing. As such, she was threatened by him with dire consequences. It is stated that on the date of the incident when she was almost near the gate of Satish Industry, the accused came on a motorcycle, the accused who had a cream colour jug in his hand, poured its liquid content on the face, chest, arms, legs and thighs causing severe burn injuries on her body including injuries to both the eyes, nose, ears ,lips thighs and abdomen.
28. She further states that thereafter she was taken to HMT Hospital but she was sent to Ramaiah and then to Victoria Hospital where she was admitted and given treatment. According to her, at the hospital police came and recorded her statement on which she put her LTM since she could not sign it. It is to be noted here itself that due to the acid burns, Haseena has become blind in both the eyes and as noted by the Trial Court itself she is not in a position to identify her LTM. She states that as the accused wanted her to accept a computer from him and start working at home and as she did not accept the same, the accused threw acid on her.
29. At the outset it is to be noted that this victim has withstood the exhaustive and searching cross-examination by the accused in spite of her present physical condition. She has been asked in detail and repeatedly as to when she left the house and what exactly happened at the spot. We must note that so tar as the incident in question is concerned, she has withstood the grueling on-slot of questions and has withstood to her story in the examination-in-chief and especially as to the act of the accused/appellant Joseph in pouring/splashing acid on her. It is also to be noted that the accused has not even suggested remotely to her as to why she is implicating this accused falsely with such a ghastly incident. We find absolutely no material to hold that she is falsely implicating the accused and for what reason. As such, in our view, the Trial Court has rightly accepted her evidence to hold that it is the accused and the accused and the accused alone who poured sulphuric acid on her causing extensive physical damage to her. It is to be mentioned here itself that the motive as put forth by her may sound flimsy. But motive is an act of mind and one cannot fathom in it. Moreover, when there are two eyewitnesses, including the victim herself, in our view, the motive aspect loses its importance once we believe the eyewitness account.
30. Once we accept the evidence of the victim Haseena and corroboration of the same from an independent source P.W1 we need go no further. However it is to be noted that the prosecution has in addition, lead evidence of circumstantial nature also to connect the accused with the crime.
31. In this regard, the first material evidence is in the form of PW.21 Dr. Krishnappa. He states that on 20th of April 1999 while he was working as medical officer of Victoria Hospital, at about 9:30 p.m. the accused Joseph was brought to him by the police and on the examination he found.
a) small burnt injury on the right palm dorsal aspect over the base right thumb due to acid splash;
b) multiple acid burns on the interior aspect of left thigh and on the right thigh.
This doctor has also produced the wound certificate Ex. P. 23 and Accident register maintained in this regard. In the cross-examination nothing damaging is put across to this witness to disbelieve his uninterested version. At this stage, it is relevant to note that the accused has not denied his receiving acid burns. On the other hand, in his written statement he has specifically pleaded that after his arrest it is the police who splashed acid on him to create evidence. In this regard, the accused has examined DW. 1 Flight Lt. Arun, the then adjutant of Air Force Station Chimney Hills. According to him, as per the request of accused he is producing xerox copy of medico-legal examination register extract in which it is mentioned that accused had no injuries when he was handed over to the civilian police. It is to be noted that this witness is neither the author of the entry in the medico-legal register nor he is the person who examined the accused. Even otherwise, what the entry shows is that Joseph had no visible injuries. By looking at the injuries on the accused as noted by PW.21, which are quite small in dimensions, may not have been noticed at Air Force Station and only because of the same the independent and unbiased evidence of responsible doctor PW.21 cannot be brushed aside lightly.
32. The other circumstantial evidence is in respect of the purchase of acid bottle from the shop of PW.8 Devendra Gupta. It is to be noted that during the interrogation and voluntary statement, the accused/appellant himself has given a clue for having purchased the acid from the shop of PW.8. Only because of the same, the police were able to locate PW.8. No doubt the receipt is in the name of one Goutam whereas the accused is Joseph. But this is well understandable as the purchaser intended to hide his name. However, what is relevant is the identification of the accused as the person to whom the acid was sold. As already noted only on the voluntary information of the accused, the investigated agency could trace the shop of PW.8 and he has specifically identified it and that it is the accused who led to the police to shop on which day the counterfoil of the receipt was seized.
33. Apart from this the evidence of the seizure panch witness and the IO show that the clothes of the accused used on the day of the incident were seized on the information of the accused himself and same were subjected to forensic investigation. According to the report of the forensic expert P.W. 24, both the clothes of the victim Haseena and the appellant accused had extensive acid burn marks which clearly indicate that when the accused poured or splashed the acid on Haseena, some of it must have fell back on him causing not only burn marks on the clothes, but also on the person of the accused. This in our view, was sufficient circumstantial evidence to finally connect the accused with the crime in question.
34. So for as minor/ insignificant discrepancies, contradictions, which are pointed out by the appellant, in our view of overwhelming positive material evidence against the accused, have to be ignored.
35. In our view the Trial Court has considered these aspects in proper perspective and even on reappreciation of the entire evidence we agree with the conclusion of the Trial Court that the prosecution has succeeded beyond any reasonable doubt the fact that it is the accused and accused alone who on 24th of April 1999 at about 8;30 a.m. poured/splashed acid and caused acid burn injuries on PW 7 Haseena resulting in extensive burns especially on her face.
36. This takes us to the next question as to what is the offence committed by the accused? That is to say whether the offence is punishable under Section 326 of IPC as a held by the Trial Court or under Section 307 of IPC as contended by the State in its appeal?
37. Depending upon the finding as to the offence committed, we are also required to consider whether the punishment awarded to the accused by the Trial Court is just and proper or requires reconsideration.
38. In this regard, the learned Counsel for the accused contended that to hold an accused committing the offence of attempt to murder, five ingredients must be established by the prosecution. They are:
1. existence of intent to commit murder;
2. some steps that required to be taken after completion of preparation;
3. steps must be apparent with purpose designed;
4. it must come dangerously nearer to success; and lastly
5. it must fall short of ultimate design.
39. Relying upon pronouncement of the Orissa High Court including AIR 1994 Cr.L.J 2245 in the case of Kulamani Saahu v. state of Orissa it is contended that in absence of medical evidence showing that throwing acid on face and eyes of the injured would have caused the death, proper conviction would be under Section 326 of IPC and not under Section 307 of IPC. It is also submitted that since the appellant had benefit of acquittal in the Trial Court for that offence, the appellate Court should not reverse the same.
40. In this regard, the learned Counsel has relied upon pronouncement of a Hon'ble Supreme Court in the case of Ajit Savant v. State of Karnataka reported in 1997 (7) Supreme Court Cases 110. On the other hand, the learned Addl. State Prosecutor has submitted that in the present case as all the steps or ingredients as put forth by the defence itself having been established in the evidence of the prosecution, the Trial Court committed perversity in diluting the offence of attempt to murder punishable under Section 307 of IPC to one of causing grievous hurt punishable under Section 326 of IPC
41. It is well settled that in the offence under Section 307 of IPC, all the ingredients of offence of murder are present, except the death of the victim, As such, where the ingredients of Section 300 of IPC are lacking in the case, accused cannot be convicted under Section 307 of IPC. It is also a settled position that for applying Section 307 of IPC, it is not necessary that the injury capable of causing death should have been acutely inflicted. Section 307 also does not take into consideration the effect of the act of the accused except as a measure of punishment to be imposed upon him. In order to constitute an offence under Section 307 of IPC, actus reus and the requisite mens rea both must concur, Under Section 307, the intention precedes that act attributed to accused person. Therefore as held in the case of Hari Kishan v. Sukhabir Singh reported in AIR 1988 SC 2127 the intention is to be gathered from all circumstances, and not merely from the consequences, that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where injury is inflicted are some of the factors that may be taken into consideration to determine the intention.
42. In Kulamani's case the learned single Judge of Orissa High Court while considering the facts and circumstances of that case had found that the accused in that case taking advantage of power failure and darkness threw acid indiscriminately on participants in a procession in the darkness and as such the intention on the part of those accused was only to cause injuries and not death.
43. However, facts and circumstance of the present case are different. In the present case, the accused after giving threat to Haseena, has made preparation for the crime by purchasing large quantity of sulphuric acid from the shop of PW.8 and then poured the same on PW 7. There is nothing to show contra that either he had no knowledge or intention. The consequence of pouring large quantity of sulphuric acid on the head is likely to cause death must be known to him or has to be inferred and as such in our view, the offence clearly falls under the category of attempt to murder punishable under Section 307 of IPC and not under Section 326 of IPC.
44. Even otherwise, the Court cannot shut its eyes to obnoxious growing tendency of young persons like accused resorting to use corrosive substances like acid for throwing on girls, causing not only severe physical damage but also mental trauma to young girls. In most of the cases the victim dies because of severe burns or even septicemia or even if luckily survives, it will only be a grotesque disfigured person, who even if survive lives with mangled flesh, hideous zombie like appearance and often blind if acid is splashed on face and suffer a fate worse than death. As such, in our view the offence should be treated as falling under Section 326 of IPC or under Section 307 of IPC depending upon the intention, knowledge, severity and the extent of damage caused to the victim,
45. If one takes a look at the photograph of Haseena before the incident and afterwards which we reproduce here, one would shudder to look at the damaged face. It cannot be denied that by this rash act of throwing acid on the face of a person like Haseena not only the accused causes severe physical injury especially if thrown on face, but also shatters the mental equilibrium by trauma of the unfortunate victim, Apart from the physical and mental damage caused to the victim, we have to consider it's effect on the parents of Haseena and in turn on the society also.
46. In our view, these aspects require if necessary redefining the definition of offence of attempt to murder. Hence we hold that in the present case, the accused is guilty of offence punishable under Section 307 of IPC and not under Section 326 of IPC as held by the Trial Court.
47. This takes us to the next question as to the quantum of punishment. Before going into this question we have to take into consideration various aspects of objects and the penology.
48. We have heard the accused who is present in the Court. He states that he is a young person who has to look after aged parents. That he has served the sentence and deposited the fine also. He states that with great difficulty he has got a job now and hence, punishment imposed is sufficient Before going into the question what is just and proper sentence in the present case, let us consider some of the observation by great jurists and the Hon'ble Supreme Court itself. Lord Denning while appearing before the Royal Commission on 'Capital Punishment' expressed the following view:
Punishment is the way in which society expresses its denunciation of wrongdoing and in order to maintain respect for law, it is essential that punishment inflicted for grave crimes should reflect revulsion felt by the great majority of the citizens. For them it is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment because the wrong doer deserves it, irrespective of whether it is deterrent or not.
49. In the case of State of M.R v. Bala alias Balram reported in (2005) 8 SCC 1 the Hon'ble Supreme Court observed thus:
The rationale for advocating the award of punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilised society does not revert to the days of 'eye for an eye and tooth for tooth'. Not awarding a Just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted.
50. In the case of State of M. P. v. Munna choube and Anr. reported in ( 2005) 2 SCC 710 the Hon'ble Supreme Court while consider this aspect in detail observed thus:
The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the state. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the Courts are required to mold the sentence system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.
Therefore law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society.
Friedman in his 'law in changing society' stated thus
'State of criminal law continues to be as it should be a decisive reflection of social consciousness of the society.' Therefore, in operating the sentencing system the law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of crime, the manner in which it was planned and committed, the motive for commission of the crime, the nature of the weapon used and all other attending circumstances are relevant facts which would enter into the area of consideration.
In Mahesh v. State OF M.P. reported in (1987) 3 SCC 80 the Hon'ble Supreme Court while considering death sentence observed thus:
It will be a mockery of Justice to permit the accused the escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justice system of this country suspect. The common man will lose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure such serious threats. The duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it urns executed or committed etc. (see Sevak Perumal v. State of T.N.).
The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct.
In Jashubha Bharatsinha v. state of Gujarat (1994) 4 SCC 353 the Hon'ble Supreme Court observed:
The Courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed defect of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society.
In the case of Ravji v. state of Rajasthan (1996) 2 SCC 175 it is held that
It is the nature and gravity of the crime and not the criminal, which art germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in if duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual but also against the society to which the criminal and the victim belong .
51. Keeping these principles and guidelines laid down by the highest Court of the land we have considered the case on hand.
52. It is true that reformation as a theory of punishment had become the trend but that theory is applicable to such crimes, in which the damage is repairable or even if the damage cannot be repaired, salvation by other mode is possible. That theory is inapplicable in offences where damage is immense irreparable and cannot be retractable and as such, severe punishment is the only mode.
53. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
54. In the present case the accused/appellant for the reasons best known to him alone, has taken a drastic step of securing a deadly corrosive substance -- sulphuric acid in large quantity and poured of the same on Haseena. As can be seen from the photographs of the unfortunate victim (which we are reproducing here as a part of the judgment).
she was a young girl of hardly 20 years of age with pretty face and by one stroke the accused/appellant has made her face hideous and also blind in both eyes. By mere look at the faces (before and after the incident) it needs no great imagination to feel, not only her physical but also mental trauma. She cannot come out of the house and walk in the streets with blind eyes, nose, lips, forehead reduced to mangled flesh and thus has become a prisoner in her own house, for a lifetime. One has to consider the plight of the poor parents who named their beautiful daughter Haseena (which literally means beautiful) and now every day they have to look at the mangled face and cry in silence. We can imagine what they may be feeling and wishing that their daughter be rather dead than live with such a ghostly face.
55. The learned Counsel for the appellant/accused and the accused pleaded before us that leniency may be shown on the ground of the accused being a young person and after coming out of jail, may try to settle in life. But we asked them, what about the victim? A young beautiful girl who has now to carry all along her entire life, the hideous face, who has lost hopes forever of leading normal life including loss of a chance of marriage, the revered dream of every girl viz., motherhood, for no fault of her and this is only because of the act of the accused.
56. We asked ourselves what punishment would be sufficient/reasonable for such a criminal. If the plight of the victim is considered, in our view, only the ancient though, termed barbaric principle viz 'eye for eye' would really meet the ends of justice. However, that punishment is not permissible now. Now we are in a more civilised society governed by law. The Court has to balance the gravity of the crime with the appropriate punishment. By his ghastly act, the accused has turned a beautiful girl into a human being of ghostly in appearance. The injuries caused are very painful and will haunt the victim throughout her life. The accused has made her to suffer a life worse than death. Therefore, the minimum punishment that can be awarded in such a case is the maximum punishment provided for the offence punishable under Section 307 of IPC, After deep thought and consideration including the plea of the accused, we sentence the offender to imprisonment for life for the offence punishable under Section 307 of the IPC. We also award a compensation of Rs. 2,00,000/- to be paid by the accused in default to undergo imprisonment for 3 years in addition to the fine already awarded by the trial Court, As the compensation awarded by the trial Court has been deposited the same shall be disbursed to the parents of Haseena under the arrangements suggested by the trial Court. If the additional compensation now awarded is realised, the same also shall be paid to the victim - P.W.7 or her parents.
57. Before concluding, we have taken note of the submission of Smt. Sheela Ramanathan, learned Counsel, who appeared and assisted the learned State Public Prosecutor on behalf of the victim. She has stated that the victim because of the extensive acid burns on her face had to undergo surgery cost of which is more than rupees five lakhs.
58. Taking judicial note that such restorative surgeries cost a fortune and if unfortunately the parents or the relatives of the victim are poor or even from middle class strata, they cannot afford or spend the huge amount and ultimately even after series of surgeries the result would be not fully restoring the damaged face.
59. We feel that the State Government which owes duty to the citizens should start special help and rehabilitation programme for such victims. The learned SPP is directed to communicate our observations to the concerned and hope that the State Government will come out with such help and rehabilitation programme at the earliest.
60. In the result & for the reasons stated above we dismiss Cr.A. 1239/2004 filed by the accused. We allow the State appeal-Cr.A 1065/2004, consequently Cr.A1066/2004 also stands dismissed.