State vs K.R. Prashanth

Mohan M. Shantana Goudar, J—The judgment and order dated 18.8.2010, passed by the III Additional Sessions Court, Mysore in SC. No. 309/2007, is called in question in these appeals.

Accused-K.R. Prashanth was tried for the offences punishable under Sections 307 and 394 of IPC. The trial Court convicted him for both the offences and sentenced him to undergo imprisonment for a period of seven years and to pay a fine of Rs. 50,000/- for the offence punishable under Section 307 of IPC. He is also sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 1,000/- for the offence punishable under Section 394 of IPC.

The State has filed Criminal Appeal No. 1226/2010 seeking enhancement of sentence, whereas the convicted accused has filed Criminal Appeal No. 1138/2011 praying for his acquittal.

Case of the prosecution in brief is that injured PW.1 (victim) had acquaintance with the accused; accused was running a chit fund scheme; PW.1 had invested Rs. 1,50,000/- in the said scheme with the accused; accused had borrowed a sum of Rs. 2,50,000/- from the victim, but the same was not repaid by him; he also did not pay back Rs. 1,50,000/- in respect of chit fund investment amount to the victim; thus in order to repay the entire amount, accused had issued a cheque, dated 25.8.2007 for a sum of Rs. 4,00,000/- (Ex. P1) drawn on ICICI Bank; but the said cheque was not presented for encashment as per the request of the accused; however the victim used to pressurize the accused to repay the said amount, but the accused did not repay the said amount.

At about 5.00 p.m. on 2.9.2007, accused called the victim over phone and asked him to come with him to Bannur Village at 8.00 p.m. so that he would pay the amount of Rs. 4,00,000/-; accordingly, the victim went in his car at about 7.30 p.m. near Balaji Palace in Shivarampet, where accused boarded the car and both of them went towards Bannur Village; the victim was driving the car, whereas the accused was sitting by the side of the victim-PW.1; when the car reached a particular place after Mallahalli Village, accused asked PW.1 to stop the car near a water canal since he had to attend the nature calls; accordingly PW.1 stopped the vehicle; accused alighted from the car and went to attend the nature calls; after about ten minutes, the accused came near PW.1, who was sitting in the seat of driver during the relevant point of time and threw chilli powder on the face of PW.1, consequent upon which PW.1 started shouting; thereafter PW.1 came out of the car as he could not tolerate the burning sensation; immediately thereafter accused threw acid on the face and other parts of the body of PW.1, consequent upon which PW.1 fell down outside the car; thereafter accused boarded the car and drew it on the right hand of PW.1 and went away with speed towards Mysore; since PW.1 did not have any means of transportation, he came to Mallahalli by walk and called his friend (PW.3) over phone and informed about the incident; at about 9.30 p.m., PW.2 (brother of PW.1), PW.3 and another person came near the victim and took him to B.M. Hospital, Mysore and admitted him for treatment. According to the case of the prosecution, the accused tried to commit the murder of injured PW.1 in order to avoid repayment of loan amount.

The hospital authorities of B.M. Hospital, Mysore, sent medico-legal intimation to the jurisdictional police and consequently, PW.12, the Inspector of Police of Mysore South Police Station came to the hospital and recorded the statement of injured PW.1 at about 9.45 a.m. on 3.9.2007 as per Ex. P2 in the presence of the doctor-PW.10, based on which Crime No. 258/2007 came to be registered in Mysore South Police Station at about 11.00 a.m. on 3.9.2007. The FIR as per Ex. P22 reached the jurisdictional Magistrate at about 1.45 p.m. on the same day.

During the course of investigation, the medical records pertaining to the victim as well as the accused are collected; the statements of relevant witnesses are recorded and ultimately charge sheet came to be filed by the Inspector of Police (PW.15).

In order to prove its case, the prosecution in all examined 15 witnesses and got marked 25 Exhibits and 4 Material Objects. On behalf of the defence one Exhibit came to be marked. As aforementioned, the trial Court on evaluation of the material on record, convicted the accused for both the offences with which he was charged and has sentenced him as mentioned supra.

Sri Ravindra Gowda, learned counsel appearing on behalf of M/s. Tomy Sebastian Associates, for accused taking us through the entire material on record submits that the Court below is not justified in convicting the accused for the offences with which he was charged; the car said to have been robbed by the accused is not seized from him, but is seized from a public place; the evidence on record is not sufficient to convict the accused for the offence punishable under Section 394 of IPC; there is nothing on record to show that the car belongs to the injured-PW.1 and hence, the trial Court is not justified in convicting the accused for the offence punishable under Section 394 of IPC.

He further submits that the injured-PW.1 himself was carrying the acid in order to take revenge against the accused; the injured himself had to pay a sum of Rs. 1,50,000/- to the accused and in order to avoid such payment, he wanted to take away the life of the accused; when the injured tried to splash the acid on the body of the accused, the accused avoided and consequently, the acid spilled over the body of the injured to certain extent; during the said process, accused also sustained certain burn injuries. According to him, the version of PW.1 totally false and the same bristles with the contradictions and major omissions; the prosecution has created a story against the accused with an oblique motive to take revenge against him for different reasons. Thus, he prays for acquittal of the accused, in the alternative, he prays for reduction of sentence imposed on the accused.

The aforesaid arguments are opposed by Sri Vijaykumar Majage, learned Additional SPP appearing on behalf of the State. He submits that the trial Court is justified in convicting the accused for both the offences with which he is charged. However, according to him, the trial Court is not justified in imposing sentence on him merely for seven years and fine of Rs. 50,000/-; since it is a ghastly offence relating to throwing of acid on the victim, the accused should be sentenced with life imprisonment apart from imposing higher sentence of fine. He draws the attention of the Court that the evidence of PW.1 is fully supported by the medical evidence, which clearly reveals that the victim has to suffer all through his life, inasmuch as his face is not only disfigured, but also he has lost his left eye completely. He further submits that the trial Court is not justified in imposing meager sentence of one year in respect of the offence punishable under Section 394 of IPC.

PW.1 is the complainant. He is the victim. Complaint is at Ex. P2. He has deposed meticulously about the actual incident in question.

PW.2 is the brother of PW.1 and PW.3 is the friend of PW.1. At the first instance, PW.1 called PW.3 over phone and informed about the incident in question and requested him to come to Mallahalli Village, in turn PW.3 informed PW.2 about the incident in question. Consequently, PWs.2 and 3 came to Mallahalli Village, where PW.2 was sitting. PWs.2 and 3 took PW.1 from there to Mysore and admitted to B.M. Hospital, Mysore for treatment.

PW.4 is the owner of the shop in which accused had purchased nitric acid. He has deposed about the seizure of Ex. P16, the bill book relating to purchase of acid. He identified MO. No. 3 (acid bottle) sold by him. Ex. P16 is seized by the police under panchanama at Ex. P15. It is relevant to note that PW.8 is another witness for seizure panchanama at Ex. P15.

PW.5 is the witness for scene of offence panchanama at Ex. P3.

PWs.6 and 7 are the witnesses for mahazars at Exs. P17 and P18. Ex. P17 is the panchanama relating to seizure of pant of the accused which contained the acid stains consequent upon which, the wholes were created by the acid stains on the pant. Ex. P18 is the mahazar relating to seizure of acid bottle (MO. No. 3) from the scene of offence. PW.6 has turned hostile to the case of the prosecution, whereas PW.7 though has turned hostile to the case of the prosecution in respect of panchanama at Ex. P17, has supported the case of the prosecution in respect of panchanama at Ex. P18.

As aforementioned, PW.8 is another witness for panchanama at Ex. P15, under which bill book is seized from the shop of PW.4.

PW.9 is the doctor attached to K.R. Hospital, Mysore. He has treated the accused on 11.9.2007 and issued the wound certificate as per Ex. P19.

PW.10 is another doctor attached to B.M. Hospital, Mysore, He was present at the time of recording the statement of victim-PW.1 in the hospital by the Police Inspector (PW.12) as per Ex. P2. He has endorsed on Ex. P2 mentioning therein that the same is recorded before him.

PW.11 is the Head Constable who apprehended the accused on 11.9.2007.

PW.12 is the Inspector of Police attached to Mysore South Police Station. He recorded the statement of PW.1 in B.M. Hospital in the presence of the doctor-PW.10 as per Ex. P2.

PW.13 is another doctor attached to B.M. Hospital, who treated the victim on 2.9.2007. He issued the medico-legal case intimation as per Ex. P21 to the jurisdictional Police. He has also issued the wound certificate as per Ex. P25.

PW.14 is the witness for circumstantial evidence relating to last-seen together. He has seen the accused and the victim in a car at about 7.30 to 8.00 p.m. on the date of the incident, i.e., just prior to the incident in question. He has seen the accused and the victim going together number of times.

PW.15 is the Investigating Officer who completed the investigation and laid the charge sheet.

As aforementioned, the first information at Ex. P2 came to be recorded by the Inspector of Police (PW.12) in the presence of PW.10 at about 9.45 a.m. on 3.9.2007; the victim was admitted to B.M. Hospital, Mysore at about 11.00 p.m. on 2.9.2007; immediately thereafter at 11.00 p.m. itself the medico-legal case intimation is sent by the doctor of B.M. Hospital, Mysore to the jurisdictional police; Ex. P21 is received by the SHO of Mysore South Police Station at about 2.30 a.m. on 3.9.2007; the Police Inspector-PW.12 came to the Hospital to record the statement of the injured PW.1 at about 2.45 a.m. but however, the injured was not in a position to give his statement as is clear from the endorsement at Ex. P21(a); once again the Police Inspector went to B.M. Hospital at about 8.00 a.m. on 3.9.2007 and thereafter the statement of the victim is recorded as per Ex. P2 at about 9.45 a.m.

Ex. P2, the first information given by PW.1 states meticulously as to the motive for commission of offence; as to how the accused made the victim to believe that he would repay the amount; and as to how the incident took place. It is specified in Ex. P2 that accused had borrowed a sum of Rs. 4,00,000/- for the purpose of opening a mobile shop, but the same was not repaid to the victim; at about 5.00 p.m. on 2.9.2007, the accused called the victim over phone to come along with him to Bannur Village at 8.00 p.m. so that he would pay a sum of Rs. 4,00,000/-; believing his words, the victim went in his car bearing Reg. No. KA-09-M-9604 near Balaji Palace situated at Srirampet, Mysore at about 7.30 p.m., where the accused boarded the car of the victim; thereafter both of them went in the said car towards Bannur; when they reached near a water canal, which flows after about 5 kms from Mallahalli Village, the accused requested the victim to stop the vehicle in order to attend calls of nature; at about 8.30 p.m., the accused came back to the car from behind and threw chilli powder on the face of the victim at the first instance, consequently, the victim shouted; immediately thereafter, accused splashed acid on the face of the victim and other portions of the body, consequent upon which the victim fell on the ground outside the car; accused took the victim's car and drove it on the right hand of the victim and went with speed. The complaint-Ex. P2 further contains the details of PWs.2 and 3 and another person coming to the victim and admitting him to B.M. Hospital, Mysore for treatment.

The averments made in Ex. P2 are fully supported by the evidence of injured eye witness-PW.1. He has deposed fully supporting the averments made in Ex. P2. Though he is subjected to cross-examination by the defence, nothing could be brought out in order to disbelieve his version. It is meticulously deposed by him that the accused was due to the victim in a sum of Rs. 4,00,000/- and as the security purpose, he had issued a cheque for the said amount drawn on ICICI Bank. However, at the request of the accused, the same was not presented for encashment by the victim. Consequently, the victim was pressurizing the accused to pay the said amount. Despite the same, the amount was not repaid by him. Ultimately, on the date of the incident, the accused under the garb of repayment of Rs. 4,00,000/- called the victim over phone to come along with him to Bannur Village so that he would pay the said amount; accordingly, PW.1 went in his car along with the accused to Bannur Village; on the way, accused threw chilli powder and acid on his face and other parts of his body, consequent upon which, victim fell on the ground; thereafter, accused took the victim's car and drove it on the right hand of the victim consequent upon which the victim sustained fracture of right hand as is clear from the wound certificate at Ex. P25. Even in the cross-examination, the victim has reiterated as to how the incident took place and as to how the chilli powder and acid were thrown on him. Since the victim was unarmed he was helpless at the time of the incident in question. On the other hand, the accused came to the spot fully prepared with chilli powder as well as the acid in a bottle. We find that the evidence of PW.1 is consistent with the case of the prosecution in respect of acid throwing by the accused on the victim. We also do not find any ground to disbelieve his version, inasmuch as he is the injured eye witness and more over the accused has not disputed his own presence on the spot. The suggestions made by the accused to PW.1 during his cross-examination would infact reveal that the accused was very much present and he was the inmate of the car. In the matter on hand, accused also sustained injuries as is clear from the wound certificate at Ex. P19. The doctor PW.9 who treated the accused has deposed supporting the wound certificate at Ex. P19 to the effect that accused has sustained 20% to 25% burn injuries on his lower limbs. The photographs of the injured (Exs. P4 to P12) produced before the Court would clearly reveal that half of the face of the victim is burnt, apart from the other portions of his body. The left eye of the victim is completely lost and rendered useless. The negatives of the said photographs are at Ex. P13. The victim has deposed that because of such burn injuries, he has lost his left eye. He also sustained burn injuries on his left arm, back, chest portion, etc. The left side of his face as well as right ear are burnt to the maximum extent. He also sustained fracture and dislocation of right shoulder joint; fracture of inferior angle of siapula; comminuted fracture of upper end of humerus. He has deposed that his face has become ugly and consequently, he is not doing any business after the incident in question.

The evidence of PW.1 is fully supported by the doctor-PW.13 who treated the victim immediately after the incident i.e., 2.9.2007. The said doctor issued medico-legal intimation as per Ex. P21 to the jurisdictional police and also issued the wound certificate as per Ex. P25. His evidence and Ex. P25 relating to wounds of the victim support the victim's version before the Court fully. The doctor (PW.13) has deposed that the victim has suffered three fractures as mentioned supra, apart from the acid burn injuries on other parts of his body more particularly on his face. It is specifically deposed by the doctor that the eye sight of left eye of the victim is lost completely.

Case of the prosecution is further supported by the versions of PWs.2 and 3 who are the brother and friend of PW.1 respectively. PW.1 did not have any means of transportation facility from the scene of offence, inasmuch as the accused took away his car after the incident. Thus, the victim came by walk to Mallahalli Village and called PW.3 from public telephone. PW.3, in turn informed PW.2 about the incident and consequently, PWs.2 and 3 came to Mallahalli in a car and took the victim to B.M. Hospital and admitted him for treatment. All the aforementioned facts are spoken to by PWs.2 and 3. They have also deposed the aspect of motive for commission of offence.

Other important witnesses in the matter on hand are PWs.4 and 8, who are the witnesses for seizure panchanama at Ex. P15 under which the bill book relating to purchase of acid (Ex. P16) is seized from the shop of PW.4. PW.4 has admitted in his evidence that accused had purchased 100 ml. of strong nitric acid; he had come to his shop on 31.8.2007, i.e., just prior to the incident in question, along with one Mr. Sukumar Kole and purchased 100 ml. nitric acid apart from other things; Sukumar Kole had told that nitric acid is needed for them to be used in jewellery shop; Sukumar Kole paid Rs. 68/- for purchase of strong nitric acid; accordingly, PW.4 issued receipt to that effect as per Ex. P16 which is in duplicate. One copy of the same was available in the shop of PW.4 which came to be seized by the police. It is clearly written in Ex. P16 that the same is issued in the name of Prashanth, who is none other than the accused. PWs.4 and 8 have deposed that Ex. P16 is seized by the police under panchanama at Ex. P15. Though the defence tried to discredit the evidence of PW.4 by putting certain questions to him, the said witness has withstood in the cross-examination by deposing that the bottle for carrying acid is not made by normal plastic, but it is made up with LD plastic. It is also admitted by PW.4 that on 31.8.2007, he has not sold nitric acid in favour of anybody except the accused i.e., Prashanth of Mysore. In view of the same, it is clear that the accused had purchased nitric acid from the shop of PW.4 by taking the receipt at Ex. P16 which reveals the name of the accused. PW.4 fully supported the case of the prosecution. He also identified MO. No. 3 (nitric acid bottle) sold by him in favour of accused and Sukumar Kole. The said acid bottle (MO. No. 3) is seized during the course of investigation from the scene of offence.

PW.7 is the witness for panchanama at Ex. P18, under which the acid bottle is seized from the scene of offence. He has supported the case of the prosecution. Thus, it is clear from the material on record that MO. No. 3 which is seized from scene of offence was purchased by the accused from the shop of PW.4 on 31.8.2007.

It is relevant to note that the presence of the accused on the spot is not disputed. He himself has suggested to PW.1 that accused was present at the scene, but he was innocent. Such suggestions of the defence support the evidence of the doctor-PW.9, who treated the accused in respect of acid burn injuries. The wound certificate of the accused is at Ex. P19. The evidence of PW.9 coupled with Ex. P19 makes it clear that the accused has also sustained burn injuries on 2.9.2007. At the time of treatment, the history recorded by the doctor in the hospital reveals that the injuries are due to nitric acid while accused attacked the victim on 2.9.2007 near Bannur Road. However, in the cross-examination, the doctor has admitted that such history is provided by the Head Constable, who accompanied the accused to the hospital. Be that as it may, the evidence of PW.9 and the wound certificate at Ex. P. 19 clearly show that accused has also sustained burn injuries. The doctor has opined that percentage of burn injuries suffered by the accused is about 20% to 25% and in his opinion they are all simple in nature. The doctor has also deposed that nitric acid is very powerful acid. It is also admitted by the doctor-PW.9 that accused has sustained 9% of burn injuries on the left lower limb and 9% in respect of right lower limb. Thus, he has opined that accused has sustained 20% to 25% burn injuries.

On going through the entire material on record, we are of the clear opinion that the trial Court is justified in concluding that the prosecution has proved its case beyond reasonable doubt. Even on reconsideration of the material on record, it is clear that it is the accused who alone had committed the offence of as alleged against him. The aspect of motive as well as the incident of acid throwing are proved by the prosecution beyond reasonable doubt. Presence of the accused on the spot is not disputed by him. Accused has also sustained certain injuries in the incident in question. The ocular testimony of PW.1 is fully supported by his evidence. In view of the above, conviction of the accused for the offences punishable under Sections 394 and 307 of IPC needs to be confirmed.

It is no doubt true that the car of the accused was found elsewhere and was not found in possession of the accused. Merely because the car was not found in possession of the accused, it cannot be said that the car was not robbed by the accused. Since the evidence of PW.1 has remained unimpeached and as there is no material to suspect his version of robbing the car particularly the evidence of PWs.3 and 4, we are of the opinion that the trial Court is justified in convicting the accused for the offence punishable under Section 394 of IPC also.

We have heard the learned advocate for the defence as well as the learned Additional SPP on the point of imposition of sentence. Learned advocate for the defence submits that the accused is not at fault and as a matter of fact, the victim himself had to pay certain sums of money to the accused and therefore the incident might have occurred due to certain misunderstanding between them. Hence, he pleads leniency in the matter. According to the learned advocate for defence, the accused has improved his conduct and there are no criminal allegations of similar nature, much less of any nature subsequently.

The said submissions are opposed by the learned Additional SPP contending that the convicted accused should be sentenced with life imprisonment.

However, having regard to the totality of the facts and circumstances of the case and as the accused had also sustained 20% to 25% of burn injuries like the victim, we are of the opinion that the interest of justice will be met if the sentence of fine is enhanced by retaining the sentence of imprisonment as imposed by the trial Court. Under the facts and circumstances of the case, it would be sufficient if the accused is imposed with sentence of fine of Rs. 5,00,000/- (Rupees five lakhs only).

Accordingly, the following order is made:-

"i) Criminal Appeal No. 1138/2011 filed by the convicted accused, stands dismissed.

ii) Criminal Appeal No. 1126/2010 filed by the State is allowed in part.

iii) Sentence of fine is enhanced from Rs. 50,000/- to Rs. 5,00,000/-, in default of payment of fine, the accused shall undergo imprisonment for further period of five years.

iv) In case of recovery of fine, the entire amount of Rs. 5,00,000/- shall be paid to injured PW.1 Sri Sathish Bhat B, S/o. Vittaldas, as compensation.

v) The fine of Rs. 5,00,000/- shall be paid by the accused within four months from today, if not the accused shall be subjected to undergo default sentence as mentioned supra.

vi) It is needless to mention that the sentence of imprisonment as imposed by the trial Court shall remain unaltered."