The State Of Himachal Pradesh vs Vijay Kumar Alias Pappu

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 753 OF 2010

STATE OF HIMACHAL PRADESH & ANR. ….Appellant(s)

VERSUS

VIJAY KUMAR ALIAS PAPPU AND ANR. ...Respondent(s)

JUDGMENT

Rastogi, J.

1. The challenge in this appeal is against the judgment of the

Division Bench of the High Court of Himachal Pradesh at Shimla

dated 24th March, 2008 filed at the instance of the State of

Himachal Pradesh whereby the High Court was pleased to

partially allow the appeal filed by the respondents and altered the

nature of offence from one under Section 307/34 IPC to one

under Section 326 IPC and reduced the sentence of 10 years Signature Not Verified Digitally signed by

rigorous imprisonment and fine of Rs. 5,000/­ each to 5 years DEEPAK SINGH Date: 2019.03.15 17:56:06 IST Reason:

rigorous imprisonment and increased the fine to Rs. 25,000/­

1 each and in default, to undergo further imprisonment of six

months.

2. In the instant case, the victim has suffered 16% burn injury

which was caused due to acid attack on the darkest day of her

life, i.e. on 12th July, 2004. To unfold the prosecution version in

nutshell that, on 12th July, 2004 at about 9.00 a.m. PW­13

Shami Verma resident of Mashobra, who was present at BCS at

Khalini­Dhalli By­Pass saw PW­5 Kumari Ishita(victim) crying

with burn injuries, who had jumped into the water tank nearby.

PW­13 Shami Verma took out PW­5 Kumari Ishita­victim from

the tank and informed to the Police Post, New Shimla, that a girl

with burn injuries was present near her residence and this

information(Exhibit PR) was recorded by the Incharge of the

Police Post, New Shimla, who deputed a police officer on wireless

set to go to the site. PW­36 Shakuntla Sharma went to the site

and shifted the victim to the hospital and recorded her statement

on which a case was registered. During investigation, PW­5

Kumari Ishita(victim) stated that when she was going to college,

two boys came on a scooter and threw some acid over her from a

2 jug and run away from the spot. After investigation, challan was

filed against both the accused respondents who were tried by the

learned trial Court leading to their conviction which convicted

them for offence under Section 307/34 IPC and sentenced them

to undergo rigorous imprisonment of 10 years with a fine of

Rs. 5,000/­ each by judgment dated 30 th November, 2005 which

came to be challenged by them in appeal before the High Court of

Himachal Pradesh.

3. Taking note of the chemical burns caused by sulphuric acid

of around 16%, which is evident from the report of Dr. Piyush

Kapila(PW­2), Department of Forensic Medicine, the High Court

arrived at the conclusion that the offence under Section 307/34

IPC was not made out and converted the offence from Section

307/34 IPC to Section 326 IPC and sentenced them for a period

of 5 years rigorous imprisonment with a fine of Rs. 25,000/­ each

vide impugned judgment dated 24th March, 2008.

4. The accused respondents have accepted the conviction and

have undergone their sentence in terms of the judgment

impugned dated 24th March, 2008 and have deposited the fine

amount of Rs. 25,000/­ each as informed to this Court and

3 were released on 9th December, 2008 after undergoing sentence

in terms of the impugned judgment.

5. The main thrust of the submission of the learned counsel

for the appellants is that it was a case of acid attack on innocent

young victim of 19 years and learned trial Court has rightly

convicted the accused respondents under Section 307/34 IPC

and sentenced them to 10 years rigorous imprisonment and there

was no reasonable and cogent justification for the High Court to

interfere with the impugned judgment of the learned trial Court

dated 30th November, 2005 and once they had been held guilty,

their alteration of punishment is uncalled for and prayed for

restoring the conviction and sentence held by the learned trial

Court dated 30th November, 2005. Learned counsel further

submitted that if this Court is not inclined to restore the

conviction and sentence passed by the learned trial Court dated

30th November, 2005, at least the victim is entitled for

compensation admissible under the law.

6. Learned counsel for the respondents has supported the

judgment of the High Court dated 24th March, 2008 and

4 submitted that the respondents were young at the given point of

time on the date of incident dated 12th July, 2004 and looking

into the chemical burns of 16% which the victim had suffered, by

no stretch of imagination, it could be considered to be a case of

Section 307 IPC of committing an attempt to murder. Further, in

the given facts and circumstances, it was not even a case of

Section 326 IPC but they have accepted the wrong which had

been committed by them and after undergoing sentence in terms

of the impugned judgment, both were released on 9 th December,

2008 and there is no justification to restore the conviction and

sentence awarded by the learned trial Court dated 30 th November,

2005. In support of his submission, reliance is placed on the

judgment of this Court in Sachin Jana and Another Vs. State

of West Bengal 2008(3) SCC 390 and submitted that it was a

case where the victims suffered more than 50% burn injury

caused due to acid and the conviction was under Section 307 IPC

and yet this Court had reduced the sentence to 5 years rigorous

imprisonment with fine of Rs. 25,000/­.

7. In this background, the question for consideration is

whether the imposition of sentence by the High Court is

5 proportionate to the crime in question and whether the victim is

entitled for any compensation in addition to what has been

awarded under the impugned judgment.

8. Learned counsel for the appellants submits that by no

stretch of imagination, the period undergone, can be regarded as

appropriate for the offence under Section 326 IPC and definitely

not when there is acid attack. She submitted that there may not

be any misplaced sympathy and exhibition of unwarranted mercy

to pave the path of injustice to the victim.

9. Learned counsel for the respondents submitted that the

incident has happened long back on 12 th July, 2004 and by this

time, the victim as well as the respondents have been living their

individual lives and respondents have undergone the sentence

passed and were released on 9th December, 2008. They are

leading a reformed life and after a long lapse of time, to send

them to custody would tantamount to a gross injustice to them.

10. The two­Judge Bench of this Court in Sachin Jana and

another’s case(supra) where the accused persons faced trial for

offence under Sections 148, 323, 324 and 307 read with Section

149 IPC on account of 50% burn injury which was caused due to

6 acid attack were convicted by the High Court for offence under

Section 307/34 IPC but their custodial sentence was reduced to

5 years and a fine of Rs. 25,000/­. The relevant extract is as

under:­

“9. It is to be noted that three persons suffered injuries on account of acid poured on them. The doctor had indicated that each of the injured persons suffered more than 50% burn injury which was caused due to acid and the same was sufficient to cause death if not attended by medical aid at appropriate time.

12. When the evidence on record is analysed, it is clear that Section 307 read with Section 34 IPC has clear application. The acid burns caused disfigurement.

13. Considering the nature of dispute the custodial sentence is reduced to 5 years. However, each of the appellants is directed to pay a fine of Rs 25,000. If the amount is deposited by the appellants within six weeks from today, out of each deposit, Rs 10,000 shall be paid to each of the victims PWs 1, 2 and 3; in case the amount of fine imposed is not deposited, the default custodial sentence of one year each.”

11. The matter in reference to the victim suffered due to acid

attack was further considered by a two­Judge Bench of this

Court in Ravada Sasikala Vs. State of Andhra Pradesh and

Another 2017(4) SCC 546 where learned trial Court convicted

the accused person under Section 326 and 448 IPC and

sentenced him to suffer rigorous imprisonment for one year and

directed to pay a fine of Rs. 5,000/­. The High Court while

7 confirming the conviction under Section 326 IPC released the

accused to the period which he had already undergone of 30 days

which came to be interfered by this Court and the punishment

and sentence of one year under Section 326 IPC was restored.

But while doing so, this Court also ousted the compensation

which the victim may be entitled for under Section 357 and

Section 357­A of the Code of Criminal Procedure,

1973(hereinafter being referred to as “CrPC”).

12. Indeed, it cannot be ruled out that in the present case the

victim had suffered an uncivilised and heartless crime committed

by the respondents and there is no room for leniency which can

be conceived. A crime of this nature does not deserve any kind of

clemency. This Court cannot be oblivious of the situation that

the victim must have suffered an emotional distress which

cannot be compensated either by sentencing the accused or by

grant of any compensation.

13. After going through the material on record, we are of the

considered view that the accused respondents have rightly been

held guilty and their conviction under Section 326 IPC and

sentence for 5 years at least needs no interference but at the

8 same time, we are disposed to address on victim compensation

which may at least bring same solace to the victim for the

sufferings which she had suffered.

14. In Ankush Shivaji Gaikwad Vs. State of Maharashtra

2013(6) SCC 770, a two­Judge Bench of this Court referred to the

amended provision, 154th Law Commission Report that has

devoted entire chapter of victimology, wherein the emphasis was

on the victim.

15. In Laxmi Vs. Union of India and Others 2014(4) SCC 427,

this Court observed that Section 357­A came to be inserted in the

Code of Criminal Procedure, 1973 by Act 5 of 2009 w.e.f. 31 st

December, 2009 which, inter alia, provides for preparation of a

scheme for providing funds for the purpose of compensation to

the victim or his dependents who have suffered loss or injury as a

result of the crime and who require rehabilitation. This Court

further directed that acid attack victims shall be paid

compensation of at least Rs. 3 lakhs by the State

Government/Union Territory concerned as the aftercare and

rehabilitation cost.

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16. In State of M.P. Vs. Mehtaab 2015(5) SCC 197, this Court

directed the compensation of Rs. 2 lakhs noticing the fact that

occurrence took place in 1997 and it observed that the said

compensation was not adequate and accordingly, in addition to

the said compensation to be paid by the accused, held that the

State was also required to pay compensation under Section 357­

A CrPC and reliance was placed on the decision in Suresh Vs.

State of Haryana 2015(3) SCC 227.

17. Victim Compensation Scheme has been considered by this

Court in State of H.P. Vs. Rampal 2015(11) SCC 584 and this

Court opined that compensation of Rs. 40,000/­ was inadequate

taking note of the fact that the life of young child aged 20 years

was lost and taking note of the precedents observed that in the

interest of justice, the accused is required to pay a sum of Rs. 1

lakh and the State to pay a sum of Rs. 3 lakhs as compensation.

18. Taking note of the precedents of which reference has been

made, we consider it appropriate to observe that both the

accused shall pay the additional compensation of Rs. 1,50,000/­

(Rupees One Lakh and Fifty Thousand) each and the State of

Himachal Pradesh shall pay the compensation as admissible

10 under the Victim Compensation Scheme as in vogue to the acid

victim (Ishita Sandhu, D/o Late Shri Rikhi Ram Sandhu)

(Appellant No. 2). If the accused does not pay the additional

compensation amount of Rs. 1,50,000/­ (Rupees One Lakh and

Fifty Thousand) each within six months, the defaulting accused

shall suffer rigorous imprisonment of six months. The State shall

deposit the compensation before the trial Court within three

months from today and the learned trial Court, after proper

identification of the victim, disburse at the earliest.

19. The impugned judgment of the High Court stands modified

and the appeal is accordingly disposed of.

20. Pending application(s), if any, stand disposed of.

…………………………..J. (A.M. KHANWILKAR)

.………………………….J. (AJAY RASTOGI) NEW DELHI March 15, 2019

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