IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 794 of 1997 Date of Decision : September 20, 2010 Diwakar Kumar ....Petitioner Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. D.S.Bali, Senior Advocate with Mr. Salil Bali, Advocate for the petitioner. Mr. P.S. Sidhu, Additional Advocate General, Punjab Mr. K.S.Cheema, Advocate with Mr. G.S.Punia, Advocate for the complainant. T.P.S. MANN, J. The petitioner was tried for an offence punishable under Section 326 IPC. Vide judgment and order dated 3.6.1994 passed by Judicial Magistrate 1st Class, Hoshiarpur, the petitioner was convicted for the aforesaid offence and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,500/-. The fine which was deposited by the petitioner in the Court there and then, was ordered to be paid to injured Jagdish Mitter. Crl. Revision No. 794 of 1997 -2- Aggrieved of his conviction and sentence, the petitioner filed an appeal but the same was dismissed by Additional Sessions Judge, Hoshiarpur on 12.8.1997 except with the reduction in the sentence of rigorous imprisonment from three years to rigorous imprisonment for two years. Hence, the present revision wherein the petitioner has challenged his conviction and sentence of the offence under Section 326 IPC. Injured Jagdish Mitter also filed Criminal Revision No. 1218 of 1997 with a prayer for awarding exemplary punishment to the convict. As both the revisions are based on same set of facts, they are being disposed of by a common judgment. According to the prosecution, complainant Jagdish Mitter was residing in Dhobi Mohalla, Phagwara Road, Hoshiarpur and was a student of pre-university in the S.D.College, Hoshiarpur. His father was a Government employee being Assistant Food and Supplies Officer at Hoshiarpur. On 31.7.1986 at 8.00 p.m. he, alongwith his mother Kesri Devi, his younger sister, brother, son of his aunt(Bua) and Joginder Singh, who had come to visit them, was present in the house. His father was not at home and had gone to the Bazar. The door bell rang. He went to open the door. His mother followed him. Complainant Jagdish Mitter enquired as to who was at the door and he heard saying 'Main Han'(Its me). When he opened the door he saw a gentleman having a beard, who was wearing a cap like thing on his head, having a mufler around his neck and wearing a raincoat. On his opening the door the Crl. Revision No. 794 of 1997 -3- gentleman threw acid on him which he was carrying in a small tin held in his hand. The acid splashed on his head, mouth and beard. His mother shouted and on hearing the noise Joginder Singh also came there but the assailant succeeded in running away alongwith the acid tin in his hand. According to the complainant, there was a light of the bulb and also stated that he and his mother could identify the culprit if brought before them. On hearing their hue and cry the people assembled. His mother took him to the hospital for medical treatment where he was admitted. Accordingly, FIR No. 167 dated 31.7.1986 under Section 326 IPC was registered at Police Station City, Hoshiarpur. Further case of the prosecution was that a letter dated 10.4.1987 was received by the father of the complainant, who was working as Assistant Food and Supplies Officer at Hoshiarpur. The person, who had written the letter had stated therein that he was feeling perturbed after throwing acid on the face of the victim. The letter was got compared by the father of the complainant from handwriting expert with the registers of the ration sale depot of the father of the petitioner and run by the petitioner himself. Accordingly, the petitioner was booked in the case and was arrested. Upon completion of investigation, the petitioner was challaned. He was charged for the offence under Section 326 IPC to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Kesri Crl. Revision No. 794 of 1997 -4- Devi, PW2 Dr. Rakesh Gupta, PW3 ASI Tirath Singh, PW4 Inspector Amrik Singh, PW5 Jagdish Mitter, PW6 Joginder Singh, PW7 Shankar Dass, PW8 Roop Lal, PW9 Dr. Arvind Sud and PW10 Dr. Gurdip Singh. The plea of the petitioner, when examined under Section 313 Cr.P.C. was of false implication. In his defence, he examined DW1 MHC Yash Pal, DW2 Tirath Kumar and DW3 Chaman Lal. After hearing learned counsel for the parties and going through the evidence brought on the record, the trial Court came to the conclusion that it was the petitioner, who had thrown the acid on the complainant as a result of which the latter received injuries and lost his eye sight. It was also held that after committing the crime, the petitioner felt sad and wrote a letter in which he confessed to have thrown acid on the complainant. Accordingly, the petitioner was convicted and sentenced for the offence under Section 326 IPC, as mentioned above. I had heard learned counsel for the parties and gone through the records of the case. Though the petitioner was not named as accused in the FIR registered at the instance of the complainant yet his identity was established when he sent letter Ex.P1, which was received by PW7 Shankar Dass, father of the complainant. Though the petitioner gave Crl. Revision No. 794 of 1997 -5- out his name as Manjit in the said letter in which he confessed in no uncertain terms that he had committed a blunder in throwing acid on the complainant yet the prosecution was successful in establishing that letter Ex.P1 was in the handwriting of the petitioner. In this regard, the prosecution relied upon the testimony of PW9 Dr. Arvind Sud, Handwriting and Finger Print Expert, Hoshiarpur, who compared the writing contained in letter Ex.P1 with the standard writing of the petitioner in the sale register of palm oil of M/s Raghbir Chand Ram Parkash, Depot Holder, Model Town, Hoshiarpur. It was the petitioner, who used to make entries in the sale register maintained by the firm of which his father was a partner. As per the prosecution case, Shankar Dass PW7, father of complainant Jagdish Mitter, had been working as A.F.S.O., Samrala and conversant with the handwriting of the petitioner as it was the petitioner, who was making entries in the register regarding sale of palm oil at the depot run by the petitioner's father. The trial Court in para 16 of its judgment observed that it also compared the handwriting of the petitioner on the letter Ex.P1 with that appearing on the sale registers Exs. P2 and P3 and came to the conclusion that the writing was of one and the same person. During the investigation of the case, the petitioner was asked to give his specimen handwriting for its comparison with the writing contained in letter Ex.P1 but he refused. Under these circumstances, the Court can reasonably draw an inference that had he given his specimen handwriting for comparison, it would Crl. Revision No. 794 of 1997 -6- have been found to be of the same person, who had written letter Ex.P1. It is true that during investigation of the case one Vinod Kumar Ohri was detained by the police on the suspicion of being involved in the case but it did not mean that the petitioner had not thrown the acid on the complainant. In fact during the investigation, the Investigating Officer had collected material, which indicated the involvement of the petitioner as well as of Vinod Kumar Ohri and Sunil Dutt Walia. Possibility cannot be ruled out that Vinod Kumar Ohri may have been detained in enabling the police to reach the actual culprit, who had thrown the acid on the complainant. The petitioner cannot derive any benefit on account of detention of Vinod Kumar Ohri. It is also true that letter Ex.P1 brought on record is a photocopy of the original. However, it was the defence itself, which was responsible for bringing on record the material through the cross- examination of PW7 Shankar Dass that immediately after receiving the said letter, he had passed on a photostat copy of the same to the police whereas the letter in original was retained by him. Even the letter in original was handed over to the police after he got the same examined from the expert. According to the medical evidence, complainant Jagdish Mitter received burns on his face and eyes. As a result he became totally blind. In such a situation, the complainant would not have been Crl. Revision No. 794 of 1997 -7- able to identify the assailant subsequent to his arrest. The prosecution case cannot be thrown out on the ground of non holding of test identification parade. In view of the above, no case is made out for any interference in the conviction of the petitioner for the offence under Section 326 IPC. The occurrence in question had taken place in the year 1986 and the challan was presented against the petitioner in the year 1988 and ever since then he has been facing the agony of criminal prosecution. At the same time, on account of the act of the petitioner in throwing acid on the face and eyes of complainant Jagdish Mitter, the latter received burns on his person. The complainant was referred to Eye Specialist for expert opinion. According to PW10 Dr. Gurdip Singh, he examined the eyes of the complainant on 31.7.1986 and referred him to Medical College, Amritsar for further treatment on 1.8.1986. As per certificate Ex.PA/1 issued by him, the cause of blindness was acid burnings (sic). At the time when PW10 deposed before the trial Court, the complainant was permanently blind. To the same effect was the statement of PW2 Dr. Rakesh Gupta, who had initially medico legally examined the complainant. The complainant was a young lad of 16 years of age at the time of the occurrence. Taking into consideration the totality of the circumstances, Crl. Revision No. 794 of 1997 -8- the Court is of the view that the sentence of two years imposed upon the petitioner by the lower appellate Court deserves to be reduced to one year. At the same time, the fine of Rs.2,500/- imposed upon the petitioner can be enhanced by Rs.50,000/- so as to adequately compensate the complainant for the blindness he suffered on account of the act of the petitioner. Resultantly, the conviction of the petitioner under Section 326 IPC is maintained. His substantive sentence of imprisonment is reduced from rigorous imprisonment for two years to rigorous imprisonment for one year. The sentence of fine alongwith its default clause, is maintained. However, the petitioner shall also pay an amount of Rs.50,000/- to complainant Jagdish Mitter as compensation. In default thereof, the petitioner shall undergo simple imprisonment for a period of one year. Criminal Revision No. 794 of 1997 and Criminal Revision No. 1218 of 1997 are, accordingly, disposed of. ( T.P.S. MANN ) September 20, 2010 JUDGE ajay-1