Selvam vs Inspector of Police

R. Regupathi, J.—The appellant, sole accused in the case was convicted for an offence punishable under Sections 376, 312, 302 and 307

IPC and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default, to undergo rigorous

imprisonment for 6 months u/s 376 IPC, sentenced to undergo imprisonment for life and also to pay a fine of Rs. 1000/-, in default, to undergo

rigorous imprisonment for 6 months u/s 302 IPC, sentenced to undergo rigorous imprisonment for three years u/s 312 IPC, and sentenced to

undergo rigorous imprisonment for 7 years and also to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for 6 months u/s 307

IPC. All the sentences were directed to run concurrently. Aggrieved against the conviction and sentence, the present appeal is preferred.

As per the charges framed, it is alleged that the accused/appellant is the brother of the deceased born through the first wife of her father and

during April 2004, by threatening the deceased by stating that he will expose the illicit intimacy of her mother with one Krishnamoorthy, committed

rape against her will and thereby committed the offence punishable u/s 376 IPC. During July, 2004 in view of the illicit intimacy of the accused with

the deceased, she became pregnant and the accused took the deceased to a Doctor and her pregnancy was aborted without her knowledge and

against her will and thereby committed an offence punishable u/s 312 IPC. On 1.2.2005, at 1.15 p.m., at the time when the deceased was sitting in

a Bus which was stationed at the old Bus Stand, Salem, along with P.W.17, her family friend, the accused poured Acid on the deceased as well as

P.W.17, in the result, she sustained injuries all over the body and thereafter she was admitted in the Government Hospital, Salem and Coimbatore

and in spite of treatment given, succumbed to those injuries on 25.2.2005 at 10.20 a.m., and thereby committed offence punishable u/s 302 IPC.

During the course of same transaction, on 1.2.2005, at the time when the Acid was thrown on the deceased, it was also thrown on P.W.17, who

sustained burn injuries on his left hand, left leg, left elbow and thereby committed offence punishable u/s 307 IPC. After framing of the charges,

when the accused was initially questioned by the trial court, the accused pleaded innocence and therefore the trial of the case was taken up. The

prosecution examined PWs.1 to 27 and marked Exs.P.1 to P.44 and produced Material Objects 1 to 23 to substantiate the case of the

prosecution.

P.W.1 is the mother of the deceased. It is her evidence that the accused is the son of the first wife of her husband. The accused has been staying

with P.W.1 initially and marriage was performed for him and given birth to a child. Thereafter, a Muslim girl was brought by the accused to her

residence and she was sent back after performing a Panchayat. P.W.1 arranged for him a job initially by establishing a Laundry Shop and

thereafter an Auto-rickshaw was given to him. By running the Auto-rickshaw he was leading his life. Thereafter, leaving the Auto-rickshaw with

her son, he left to Kerala and performed marriage with one Beena and brought her to her residence. During this time, on seeing improper

behaviour of the accused with the deceased, he was sent out and he was living separately. Under such circumstances, during April 2004, the

accused took away the deceased, who was studying in the school, and admitted her in the Women''s Hostel at Hasthambatti. By staying in the

Hostel, the deceased was pursuing her studies and the accused visited frequently. Four months later, on receipt of a telephone call from the

deceased, she came to understand that the accused took her out and indulged in sex with her since it was stated by the deceased that the accused

threatened her by saying that he will inform the public that P.W.1, the mother of the deceased was having illicit intimacy with one Krishnamoorthy

by pasting posters. By such threat, the accused took the deceased to various places and continued the sexual affair. Since she became pregnant,

the accused took her out and performed miscarriage of the fetus. Since the deceased was crying because of the continued torture, P.W.1 brought

her back and she continued her studies by staying with P.W.1. Even thereafter, the accused went to the residence of P.W.1 and threatened her.

The accused sent P.W.6 to request P.W.1 to arrange for the marriage of the deceased with him, for which, P.W.1 refused since the accused is in

prohibited degree of relationship. Though the deceased refused to attend the school, she was persuaded and was attending the school. In the

meantime, through P.W.5 her son, who is the brother of the deceased, a Panchayat was arranged through P.W.17, who was working as an

Advocate Clerk. On 26.11.2004, the accused was summoned and a written undertaking Ex.P.2 was received from him wherein the accused

undertook that he will not create any problem to the deceased. Even thereafter, the accused was threatening the deceased by saying that he will

throw acid on her. Under such circumstances, on 1.2.2005, she has received a telephone call from the accused at 1.30 pm., informing her that she

can go and meet her daughter at the Hospital. She rushed to the Government Hospital, Salem and the deceased was found admitted with burn

injuries and on enquiry, the victim stated that the accused thrown acid over her at the time when she was sitting in Bus Route No. 74 at the old Bus

Stand, Salem along with P.W.17.

P.W.25, Women Inspector of Police, on receipt of intimation from the Government Hospital, Salem at 2.50 pm., reached the Hospital and

received complaint Ex.P.37, attested by P.W.1. She returned back to the Police Station and registered a case in Crime No. 6/2005 for offences

punishable under Sections 376, 307 and 326 IPC. Ex.P.38 is the printed FIR. Copy of the same was despatched to the Judicial Magistrate and

superior police officers. Thereafter, she proceeded to the old Bus Stand, Salem at 5.15 pm., and in the presence of P.Ws. 8 and other witnesses

prepared Observation Mahazar Ex.P.3 and Rough Sketch Ex.P.39. Recovered the burnt blouse and overskirts of the deceased under a cover of

Mahazar. She prepared Observation Mahazar Ex.P.5 and Rough Sketch Ex.P.40 by looking inside of the bus and also collected the belongings of

the deceased as well as P.W.17 which were scattered inside the bus. She has also examined the witnesses present in the bus stand. P.Ws.3,4 and

other witnesses were present in the bus stand. On 25.2.2005, at about 2.30 pm., she received intimation from the Government Hospital,

Coimbatore regarding the death of the deceased. She reached the Government Hospital, Coimbatore and thereafter altered the offence into one

u/s 376 and 302 IPC. Ex.P.41 is the Express Report and despatched the same to the Judicial Magistrate. She conducted inquest over the dead

body of the deceased in the presence of witnesses. Ex.P.42 is the inquest report. With a requisition, she sent the dead body to conduct autopsy to

the Medical Officer, Government Hospital, Coimbatore, accompanied by a Police Constable. Thereafter as per the instructions of her superior, the

investigation of the case has been handed over to P.W.27.

P.W.27, Inspector of Police, on receipt of the case in Crime No:6/2005 from P.W.25, conducted further investigation and examined the

witnesses. On 29.4.2005, the accused was produced by P.W.24, Village Administrative Officer, Salem after his surrendering before P.W.27,

Tahsildar, Salem. On 3.20 p.m., on production the accused, in pursuance of his voluntary statement, a plastic can with sulphuric acid was

recovered. Thereafter, the accused was sent for judicial custody. During the course of investigation, Ex.P.2, letter of undertaking given by the

accused was recovered from P.W.1. The accused was subjected to potency test. The plastic can was sent for receiving opinion from the chemical

analyst. The Medical Officer who attended the deceased were examined. The Medical Officer, who conducted the test on the deceased with

regard to her age and as to whether she was subjected to sexual intercourse, issued reports and opinion under Exs.P.25 and P.30.

P.W.2 is the Driver of the Bus. It is his evidence that the bus with Route No. 74 was stationed on 1.2.2005 at the Old Bus Stand, Salem. At

1.10 p.m., after attending the call of nature, when he returned to the place, he heard about the acid throw on the deceased and the victim was

taken to the Hospital. P.W.3 is a fruit vendor who on hearing the cry and noise of the victim deceased after sustaining the burn injuries due to acid

throw, poured water over her and at that time the deceased informed that his brother, the accused thrown acid and run away. It is also stated that

P.W.17 also sustained injuries along with the deceased. After arranging an Auto-rickshaw, they were sent to the Hospital. P.W.4 is also another

fruit vendor in the bus stand who corroborated the testimony of P.W.3. P.W.5 is the brother of the deceased and son of P.W.1 who corroborated

the evidence of PW.1. P.W.6 is the witness who on the request of the accused approached P.W.1 for the purpose of arranging marriage of the

deceased with the accused. P.W.7 is the acid vendor who in his evidence stated that on 31.1.2005 at 8.00 p.m., the accused came to his shop for

purchase of acid for polishing and accordingly a can containing two litres of acid was given to him. He has identified M.O.20 plastic can containing

acid. PW.8 has been examined as a mahazar witness for the purpose of preparation of observation Mahazar at the old bus stand and for the

recovery of the cloths and other materials at the scene of occurrence viz., the old bus stand.

P.W.9 is the Headmistress of the Government Higher Secondary School, Salem, who speaks to the effect that the deceased was studying 10th

standard in her school and attended the School on 1.2.2005 for the examination and after writing of the examination, left the school at 12.25 p.m.,

Thereafter she came to know about the acid throw on her by his brother. P.W.10 is the Secretary of YMCA Women''s Hospital, Hasthampatti,

who speaks that on 1.4.2004, the deceased was admitted in the Hospital by the accused and the accused was visiting the Hospital frequently and

further P.W.10 identified the accused. Thereafter on 23.8.2004, the deceased was taken away by P.W.1.

P.W.11, is the Medical Officer, Government Hospital, Salem, who in his evidence stated that on 21.7.2004, the deceased was brought by the

accused and she was pregnant by two months. On examination, it was found that she was bleeding and conducted her termination of the

pregnancy. Ex.P.8 is the case sheet. Ex.P.9 is the certificate issued by P.W.12, Medical officer, Government Hospital, Salem, who on 1.2.2005 at

1.35 p.m., admitted the deceased as well as P.W.17 in the Hospital with burn injuries. According to him, both of them were conscious. The

deceased sustained injuries on the right side of her face, neck, chest, back side of the chest, thighs and at that time, the burns were 60 per cent.

She was admitted in the Emergency Ward. Ex.P.20 is the Accident Register. On the same date, P.W.17 was also found with burn injuries and the

Accident Register is Ex.P.11. Intimation has been sent to the Police under Ex.P.12 and Ex.P.13 in this regard. P.W.13 is the Medical Officer who

has given treatment to the deceased from 1.2.2005 and since the injuries were severe for the deceased, it was advised that she can be shifted to

the Government Hospital, Coimbatore. Ex.P.14 is the case sheet.

P.W.14 is the Medical Officer, attached to Government Hospital, Coimbatore who has given treatment to the deceased for the burn injuries and

case sheet maintained by the Hospital has been marked as Ex.P.16 and P.17. P.W.15 is the medical officer who in his evidence stated that on

25.2.2005, at the time when the deceased was in the Hospital her condition became worse and she died on 10.20 a.m., The case sheet is Ex.P.18

and the death intimation is Ex.P.19.

P.W.17 is the family friend of the deceased who sustained injury at the time when Acid was thrown by the deceased. In his evidence, he has

stated that he conducted Panchayat on the request of the brother of the deceased P.W.5. Since the relationship of the accused with the deceased

was erroneous and in prohibited relationship, an undertaking was received from the accused in which he has stated that he will behave properly. It

was reduced into writing and Ex.P.2 is the document. As soon as the said document was executed, the accused shouted at P.W.1 and challenged

her that the deceased cannot be given in marriage to anybody and if such an attempt is made, he will throw acid on her face. He has further stated

that he met the deceased on the date of occurrence namely on 1.2.2005 at 1.15 p.m., at the old bus stand, Salem. The deceased complained to

him that the accused is continuously insisting for illicit intimacy. Since it was hot outside due to summer, both of them were sitting inside the bus

bearing Route No. 74, which was stationed in the bus stand. At that time, the accused entered into the bus from the back side and thrown acid on

both of them. Then he turned back and saw the accused running with a plastic can. Since there was burning sensation all over the body, both of

them ran out from the bus, the witnesses present in the bus stand poured water over the deceased and since the dress of the deceased were burnt,

they have given a saree to cover the body of the deceased and thereafter they were sent to Government Hospital, Salem, for treatment. He has

identified M.O.20 plastic can which was used for carrying the acid.

P.W.18 is the Judicial Magistrate-V, Salem, who in his evidence stated that he visited the Hospital on 12.2.2005 on requisition Ex.P.22 at

4.30 pm., The victim deceased was found conscious and in the presence of Medical Officer, after receiving the certificate regarding consciousness,

at about 4.55 pm., recorded her dying declaration and the same is Ex.P.23. In Ex.P.23, it is stated by the deceased that the accused who is the

son of his father through the first wife admitted her in the YMCA Women''s Hostel took her out and committed rape on her. Thereafter she was

admitted in the hospital for termination of pregnancy and on the date of occurrence, at 1.15 pm., at the time when she was in the bus stand, Acid

was thrown by the accused.

P.W.19, Medical Officer examined the deceased for ascertaining her age and has given a opinion in Ex.P.25 to the effect that her age is

between 18 and 20. He has also conducted potency test of the accused and issued certificate under Ex.P.28 to the effect that the accused is a

person capable of performing sex. He has also examined P.W.17 and issued a certificate in Ex.P.29 wherein he has opined that the injuries

sustained by P.W.17 is grievous in nature. P.W.20 is a Medical officer who examined the deceased and found that she was not pregnant at the

time of examination. However, a opinion has been given to the effect that she has been subjected to sexual intercourse. Ex.P.30 is the certificate

issued to that effect. On receipt of Chemical Analyst Report Ex.P.31, final opinion has been given in Ex.P.32. P.W.21 is the Scientific Officer who

on examination of the plastic can, M.O.20, found it contains acid with 31.4 percentage. Ex.P.33 is the report and Ex.P.34 is the Chemical Analyst

Report.

P.W.22 is the Thasildar of Salem, and as per his evidence, the accused alleged to have surrendered before him on 29.4.2005 at 3.15 pm., and

has given a confession in the presence of P.w.24 and as per his directions, the accused was produced to the Police along with the confession.

P.W.26, is the Judicial Magistrate-I, Coimbatore who on receipt of requisition Ex.P.43 on 22.2.2005, visited the Government Hospital,

Coimbatore and after observing the formalities, recorded the Dying Declaration at 11.00 a.m., in the presence of Medical Officer who certified

about her fitness. Ex.P.44 is the dying declaration in which she has stated that it is the accused who has thrown acid on her and on account of that

she sustained burn injuries.

P.W.16 is the Doctor who conducted autopsy on the dead body of the deceased and found the following injuries:

External Injuries:

Extensive infected dermal and muscle deep wounds seen over : right side back of chest, middle of back of abdomen, whole of right side face, right

upper limb up to wrist level, front of chest and upper abdomen, front and sides of right thigh, front and inner aspect of left upper thigh. Patchy

circular areas of excoriations (drop pattern) seen in the gluteal region, back of left thigh and knee. Partial healing areas seen in the wound margins.

The wounds are covered with dark reddish black slough.

The Doctor has also gave the opinion that the deceased would appear to have died of extensive wounds and their complications. The

Postmortem certificate issued by him is Ex.P.21.

P.W.27, Investigating Officer, on further examination of the prosecution witnesses and material objects and reports and opinions received from

the Medical Officers concerned, on conclusion of the investigation, filed final report against the accused on 26.6.2005 for the offences punishable

under Sections 376, 312, 302 and 307 IPC.

The accused was questioned u/s 313 Cr.P.C., with regard to the incriminating materials oral and documentary available on record, for which

he has denied his complicity of commission of the offence and pleaded innocence. The trial court after perusal of the materials on record and after

hearing the arguments made by both the parties convicted and sentenced the appellant as mentioned above and aggrieved against the conviction

and sentence, the present appeal.

The learned Counsel for the appellant submits that in the dying declaration given to P.W.18, the leaned Judicial Magistrate, the deceased

stated that the acid was thrown at the time when it she was standing in the old bus stand, Salem, but on the contrary, the evidence of other

witnesses including P.W.17 goes to show that the accused alleged to have thrown acid at the time when they were sitting inside the bus. Under

such circumstances, the evidence of the prosecution witnesses is contradictory. Though it has been stated that the accused after admitting the

deceased in the Hostel took her out to various places for indulging in sex, the prosecution did not examine any witnesses from those places and

under such circumstances, the allegation against the accused has not been proved beyond reasonable doubt. A perusal of the evidence of P.W.11,

Medical Officer who treated the deceased though stated that the deceased was pregnant two months, there is no positive evidence of her

termination of pregnancy and such pregnancy caused by the accused and under such circumstances, the offence under Sections 376 and 312 IPC

have not been substantiated. Though it has been stated by P.Ws 3 and 4 that saree has been given by them for the purpose of covering the body of

the deceased after sustaining burn injuries, that saree has not been recovered which create a great suspicion on the version of the prosecution

witnesses.

Per contra, the learned Additional Public Prosecutor submits that the prosecution has meticulously collected the materials to substantiate its

case. P.W.17 is the injured eye witness and only at the time when the deceased was talking along with P.W.17 inside the bus the occurrence has

taken place and it is P.W.27 who recorded the undertaking from the accused and immediately after the occurrence when he turned back, he saw

the accused running away from the place of occurrence with the acid can and motive for the case of the prosecution has been substantiated from

the evidence of mother and brother, P.W.s 1 and 5. The conduct of the accused was consistently bad, after performing the marriage with three

girls the accused had the audacity to commit rape on the deceased and further he wanted to continue with the affair with the deceased. In spite of

the undertaking Ex.P.2 given by him, it is the evidence of P.W.17 that the accused challenged P.W.1 that if she arranges marriage of the deceased

with any one, in such event, he will throw acid on her. P.W.7, Acid vendor has also been examined. Burnt cloths at the scene of occurrence have

been recovered. The deceased is the person who had set the law in motion by giving statement, which was recorded in the Hospital by the

Investigating Officer, P.W.25. Even thereafter, a dying declaration was recorded at the time when she was admitted in the Government Hospital,

Salem by P.W.18 and at the time when she was continuing her treatment at the Government Hospital Coimbatore another dying declaration has

also been recorded by P.W.26. The evidence of the prosecution witnesses is cogent and convincing. Under such circumstances, the learned

Additional Public Prosecutor submitted that the prosecution has substantiated its case against all the charges framed by the trial court and it is not a

fit case for acquittal.

We have perused the materials available on record and carefully considered the rival submissions advanced by either side.

The accused committed a heinous crime of acid throwing on a girl aged about 18. The deceased girl is none other than the sister of the

accused, of course born to the second wife of his father. On perusal of the evidence, it appears that the accused was leading a wayward life and

performed three marriages and though a child born through the first wife, subsequently, did not live with her and performed second marriage. Even

at the time when the accused was living with the third wife at the residence of P.W.1, the accused started misbehaving with the deceased. Only

under such circumstances, the accused was sent out of the house and in spite of that he was threatening the deceased. By saying that he will tarnish

the image of P.W.1 by telling others that she was having illicit intimacy with one Krishnamoorthy, took the deceased out from the residence,

admitted her in the Women''s hostel and by threat and coercion took her out, committed rape and has indulged in such activities continuously, in

the result, she became pregnant. It is the accused who took the deceased to the Doctor to terminate her pregnancy. A perusal of the evidence of

the Medical Officer who terminated the pregnancy reveals that the deceased was pregnant by two months and was suffering bleeding at her private

parts. Unable to bear the torture given by the accused, at the time when P.W.1 visited her in the Hostel, she divulged the truth and she was taken

back to the residence. The torture of the accused continued even thereafter and only under such circumstances, P.W.5, brother of the deceased

with the help of P.W.17, arranged to convene the Panchayat, wherein he has agreed that he will not continue harassment any more. Though this

was reduced into writing in Ex.P.2, the accused threatened P.W.1 even before leaving that place not to marry the deceased to anyone, failing

which, acid will be thrown on her.

It is the evidence of P.W.1 that because of the threat, the deceased refused to go to school. However, she was persuaded to continue her

studies. On the fateful day, the deceased attended the school to appear for examination and on completing the examination, returned back and was

standing in the bus stand. She was just narrating the torture given by the accused to P.w.17 inspite of the undertaking received by P.W.17. Since it

was hot summer, they were sitting inside the bus and only at that time, the occurrence had taken place. The conduct of the accused consistently

was cruel which conveys the intention to commit the offence as per the charges. The complaint has been given by the deceased herself wherein she

has narrated that the offence has been committed only by the accused. This itself will amount to a dying declaration though it has been recorded by

the police officer. Such a statement of the deceased was recorded, for which the Medical Officer has also stated that the deceased was conscious.

P.W.1 has also attested the FIR given by the deceased. Under such circumstances, the statement given by the deceased will be taken as a dying

declaration. Moreover, on the request of the Investigating Officer, P.W.18, Judicial Magistrate, visited he Government Hospital, Salem, and

recorded dying declaration, Ex.P.23 after observing all formalities. Even thereafter at the time when she was undergoing treatment at the

Government Hospital, Coimbatore, P.W.26, another Judicial Magistrate recorded the third dying declaration from the deceased. On a perusal of

these dying declarations, we find they are consistent and we are of the considered opinion that conviction can be passed based on the dying

declarations alone.

Apart from the dying declarations, motive has been substantiated through the evidence of the mother and brother of the deceased, namely,

P.Ws. 1 and 5 which is cogent and the story of the prosecution has been convincingly proved beyond reasonable doubt. Above all, P.W.17 is an

injured eye witness, it is he who he conducted the Panchayat and obtained an undertaking from the accused. It appears that since P.W.17 has

played a major role in receiving the undertaking from the accused, the accused decided to teach a lesson for him also and that is the reason why

acid has been thrown not only on the deceased, but also on P.W.17. The evidence of the Medical Officer with regard to the injuries sustained by

P.W.17 is to the effect that the injuries is of grievous in nature. The person, who sold the Acid, P.W.7, corroborates the case of the prosecution.

The accused had the audacity to send P.W.6 requesting P.W.1, to arrange his marriage with the deceased. The injuries sustained conveys that the

accused has committed the offence with intention and premeditation. On a perusal of the other materials available on record including the evidence

of the medical witnesses, we are of the opinion that the prosecution has proved its case beyond reasonable doubt and the trial court has convicted

the accused on well founded grounds and we do not find any merit to interfere with the conviction and sentence passed by the trial court and

therefore, this appeal is liable to be dismissed.

In the result, the Criminal Appeal is dismissed confirming the judgment dated 9.1.2006, made in S.C.No:286 of 2005 by the learned Principal

Sessions Judge, Salem.