OMANAKUTTAN versus THE STATE OF KERALA on 9 May 2019

482

SUPREME COURT REPORTS

[2019] 7 S.C.R. 482

[2019] 7 S.C.R.

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OMANAKUTTAN

v.

THE STATE OF KERALA

(Criminal Appeal No. 873 of 2019)

BMAY 09, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Penal Code, 1860: s.326 – Grievous hurt by dangerousCmeans – Acid attack – Prosecution case was that the appellantalong with his wife-accused no.2 poured acid on the victim onaccount of previous enmity due to which victim sustained extensiveacid burns involving forehead, scalp, neck, back of chest asdistinctly stated in wound certificate – Victim remained hospitalisedfor 50 days – Conviction of appellant-accused no.1 by trial courtDunder s.326 and simple imprisonment for one year – Accused no.2wife of appellant, however, acquitted of the offence – High Courtaffirmed the conviction of the appellant – On appeal, held: Thefact that the victim sustained extensive acid burns on the left side ofhis body stood duly proved in testimony of victim and his motherEand also the testimony of the doctor PW-8 – It was unrealistic topostulate that even with such extensive acid burn injuries from headto thigh and long drawn hospitalisation, the victim may not havebeen in severe bodily pain for more than 20 days – The subordinateCourts as also the High Court thoroughly examined the material onrecord and returned concurrent findings against the appellant –FThere was no infirmity or perversity in such findings – The act ofcausing grievous hurt by use of acid, by its very nature, is agruesome and horrendous one, which, apart from causing severebodily pain, leaves the scars and untold permanent miseries for thevictim – The legislature having taken note of the gravity of such anGoffence has, by way of Act No. 13 of 2013, inserted ss.326A and326B IPC, providing higher punishment with minimum imprisonmentfor the offences of voluntarily causing grievous hurt by use of acidand voluntarily throwing or attempting to throw acid – However,the fact that the offence was committed in the year 1997 and the H

accused-appellant having attained the age of 63 years, in suchcircumstances, no order for enhancing the punishment is made inthis case.

Dismissing the appeal, the Court

Conclusion

HELD : 1. The fact, that the appellant poured acid on thebody of the victim was proved beyond any doubt by the evidenceon record, including the testimony of the victim PW-1 as also hismother PW-2. The fact that the victim sustained extensive acidburns on the left side of his body also stood duly proved in histestimony read with the testimony of the doctor PW-8. Therewas no infirmity or perversity in the concurrent findings of theSubordinate Courts and the High Court. Section 326 IPC,provides for punishment for causing grievous hurt by dangerousweapons or means. The victim sustained the injuries due to theeffect of the acid poured upon him by the appellant. The acid wasundoubtedly a corrosive substance within the meaning of Section326 IPC. The victim remained hospitalised for more than 50 days.It would be wholly unrealistic to postulate that even with suchextensive acid burn injuries from head to thigh on the left portionof his body and long-drawn hospitalisation, the victim may nothave been in severe bodily pain for a period of more than 20days. The victim also stated in his examination-in-chief that hewas unable to carry out his daily routines by himself duringhospitalisation; and there had not been any suggestion in thecross-examination to challenge such an assertion of the victim.Above all, the Trial Court specifically noticed the fact that thevictim had suffered permanent disfigurement on the head, whenhe was examined in the Court. In the given set of circumstancesand the facts available on record, the statement of the doctorPW-8 to the effect that the patient could carry on his daily affairswithout any aid while being treated in the hospital, does not takeaway the substance of the matter that the case was clearly coveredunder clauses ‘Sixthly’ and ‘Eighthly’ of Section 320 IPC. In fact,even the doctor PW-8 stated that there was no immediatedisfigurement during the time the skin was healing; and that thescars would develop only later. [Paras 7, 9, 10 and 10.1][487-C-E; 488-C; F-H; 489-A-C]

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A2. The act of causing grievous hurt by use of acid, by itsvery nature, is a gruesome and horrendous one, which, apart fromcausing severe bodily pain, leaves the scars and untold permanentmiseries for the victim. The legislature having taken note of thegravity of such an offence has, by way of Act No. 13 of 2013,inserted Sections 326A and 326B IPC, providing higherBpunishment with minimum imprisonment for the offences ofvoluntarily causing grievous hurt by use of acid and voluntarilythrowing or attempting to throw acid. Although the present is amatter relating to the offence committed in the year 1997, but,looking to the gravity of offence, the punishment as awarded inCthis matter prima facie appeared rather inadequate. However,having regard to the facts and circumstances of the case and moreparticularly the facts that the offence was committed in the year1997 and the accused-appellant is now said to be 63 years of age,the matter is left at that only. [Paras 11 and 12] [489-C-G]

DCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 873 of 2019.

From the Judgment and Order dated 05.06.2018 of the High Courtof Kerala at Ernakulam in Criminal Revision Petition No. 2859 of 2004.

Thomas P. Joseph, Sr. Adv., K. Parameshwar, Ms. Rajitha T. H.,EMs. Benny Antony, Surinder Kumar Gupta, Advs. for the Appellant.Nishe Rajen Shonker, Anu K. Joy, Alim Anvar, Reegan S. Bel,Advs. for the Respondent.

The Judgment of the Court was delivered byFDINESH MAHESHWARI, J. 1. Leave granted.

2. In this appeal, the accused-appellant has called in question thejudgment and order dated 05.06.2018 in Criminal Revision Petition No.2859 of 2004 whereby, the High Court of Kerala at Ernakulam upheldthe judgment and order dated 23.09.2004 passed by Additional DistrictGand Sessions Judge, Thodupuzha in Criminal Appeal No. 253 of 2002affirming the judgment and order dated 04.12.2002 by the Judicial FirstClass Magistrate, Idukki in CC No. 126 of 1999 whereby, the accused-appellant was found guilty of the offence punishable under Section 326of the Indian Penal Code (‘IPC’) and was sentenced to simpleimprisonment for one year together with fine of Rs. 5,000/- and defaultHstipulation.

3. The background aspects, so far relevant for the present purpose,could be noticed, in brief, as follows:

3.1. The prosecution case has been that the accused-appellantand the injured victim Sunil Kumar (PW-1) were neighbours. On26.11.1997 at about 6 p.m., while the victim PW-1 was passing throughMannathara-Thopramkudy Panchayat Road, the appellant along withhis wife (accused No. 2) poured acid on the victim from a ridge on theleft side of the road. Allegedly, the appellant and the victim had previousenmity due to which, the appellant poured acid, causing serious injuriesover the head, neck, shoulder and other parts of the body of the victim.The accused persons were charge-sheeted by the Sub Inspector of Police,Murikkassery Police Station in Crime No. 94 of 1997 for the offenceunder Section 326 read with Section 34 IPC. The case was tried by theJudicial First Class Magistrate in CC No. 126 of 1999, wherein tenwitnesses were examined on behalf of the prosecution.

3.2. PW-1, the injured victim, in his testimony stated that theaccused- appellant poured red-coloured liquid upon him from a yellowbucket while he was coming back from Thopramkudy; that the liquidwas poured upon him from a height on the left side of the body due towhich, his body began to burn, he tore off his shirt and dhoti and screamed;his mother (PW-2) came rushing to him crying; they ran towards a teashop; and PW-4 and PW-5 took him to hospital where he remained asinpatient for 3 months. In response to the question if he was capable ofdoing his daily routine by himself during those 3 months, he replied in thenegative. The testimony of PW-1 was corroborated by his mother PW-2, who was walking a few strides behind him at the time of the incident.Further, the witnesses PW-3, PW-4 and PW-5 also stated having seenthe victim running towards the teashop.

3.3. The treating doctor of the victim, PW-8 stated that the victimwas examined by him on 26.11.1997 at about 7.45 p.m. and that acidburns were present on the left side of the body of the victim, involvingforehead, scalp and neck, back of chest, left buttock and front of leftthigh; that the victim remained an inpatient and was discharged on18.01.1998. He further stated that there was a chance of disfigurementof the injured area. In cross-examination, the doctor stated that the victimcould carry on his daily affairs while under treatment; that there was nodisfigurement at the time of drawing the wound certificate (Ex. P/5) asthe skin was healing and that scars would develop only later. In defence, A

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Athe accused examined one witness DW-1 who suggested that on thedate of incident, the appellant was working as carpenter in his houseuntil 6 O’clock in the evening.

3.4. After scrutinizing the relevant evidence, the Judicial MagistrateFirst Class, by his judgment and order dated 04.12.2002, convicted theBappellant for the offence under Section 326 IPC and sentenced him asmentioned hereinbefore. However, the accused No. 2, wife of theappellant, was acquitted for absence of evidence against her.

3.5. The appeal preferred by the accused-appellant before theAdditional District and Sessions Judge was dismissed by judgment andCorder dated 23.09.2004 with the observations that the injuries inflictedby using corrosive substance were grievous in nature and it wasreasonable to think that the victim was unable to follow his ordinarypursuits during the period of hospitalisation.

3.6. Further, the revision petition preferred by the accused-appellantDwas dismissed by the High Court of Kerala, Ernakulam after finding noground to interfere in the concurrent findings of the subordinate Courts.Hence this appeal.

4. It may be pointed out that in the petition seeking leave to appeal,the prayer of the accused-appellant seeking exemption from surrenderingEwas granted at the initial stage but, on 13.08.2018, after considering thematter for admission and while issuing notice, this Court recalled theorder granting exemption from surrendering; and notice was also issuedto examine the question as to whether any case for enhancement of thesentence was made out, having regard to the nature of offence alleged.

5. We have heard learned counsel for the parties on the merits ofFappeal as also on the question of sentence. The main plank of contentionsof the learned counsel for the appellant has been that the victim PW-1never stated in his evidence that he was in severe bodily pain for 20days nor did he state that he had suffered disfigurement; and merely forhis hospitalisation for more than 20 days, no inference could be drawnGthat he was in severe bodily pain or was unable to follow his ordinarypursuits. The learned counsel emphasised on the submissions that in theopinion of the doctor, the victim was able to follow his ordinary pursuitswithout any aid and hence, the ingredients of Section 320 IPC are notestablished. The learned counsel submitted that the appellant deservesto be acquitted and in any case, when the incident took place about 22H

years back and the appellant is now 63 years of age, enhancement ofpunishment is not called for. Per contra, learned counsel for therespondent has duly opposed the submissions made on behalf of theappellant with reference to the findings recorded against him.

6. Having heard learned counsel for the parties and having perusedthe matter placed on record, we are satisfied that the appellant has rightlybeen convicted for the offence under Section 326 of IPC; and thoughthe punishment awarded to him, being of simple imprisonment for a termof one year and fine of Rs. 5,000/- with default stipulation, is rathertowards the side of inadequacy but, looking to overall circumstances ofthis case, we would refrain from enhancing the same.

7. So far as the basic fact, that the appellant poured acid on thebody of the victim, is concerned, the same stands proved beyond anydoubt by the evidence on record, including the testimony of the victimPW-1 as also his mother PW-2. The fact that the victim sustainedextensive acid burns on the left side of his body also stands duly provedin his testimony read with the testimony of the doctor PW-8. Thesubordinate Courts as also the High Court have thoroughly examinedthe material on record and have returned concurrent findings against theappellant. After having perused the record, we find nothing of any infirmityor perversity in such findings.

8. The principal contention urged in this appeal is that the casewould not fall under Section 320 IPC for the victim having not statedthat he was in severe bodily pain for 20 days nor did he state that he hassuffered disfigurement and, on the contrary, the doctor having statedthat the victim was capable of carrying on with his daily pursuits duringhospitalisation without any aid. The submissions remain bereft ofsubstance and do not make out a case for interference, as noticed infra.

9. Section 320 IPC specifies the kinds of hurt that are designatedas grievous hurt and reads as follows:

“Section 320 Grievous hurt.- The following kinds of hurt onlyare designated as “grievous”:- First - Emasculation.

Secondly - Permanent privation of the sight of either eye.Thirdly - Permanent privation of the hearing of either ear, A

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AFourthly- Privation of any member or joint.Fifthly- Destruction or permanent impairing of the powers ofany member or joint.

Sixthly- Permanent disfiguration of the head or face.

BSeventhly-Fracture or dislocation of a bone or tooth.

Eighthly-Any hurt which endangers life or which causes thesufferer to be during the space of twenty days in severe bodilypain, or unable to follow his ordinary pursuits.”

Section 326 IPC, providing punishment for causing grievous hurtCby dangerous weapons or means, reads as under:

“Section 326 - Voluntarily causing grievous hurt by dangerousweapons or means.- Whoever, except in the case provided forby section 335, voluntarily causes grievous hurt by means ofany instrument for shooting, stabbing or cutting, or anyDinstrument which, used as a weapon of offence, is likely tocause death, or by means of fire or any heated substance, orby means of any poison or any corrosive substance, or bymeans of any explosive substance, or by means of anysubstance which it is deleterious to the human body to inhale,to swallow, or to receive into the blood, or by means of anyEanimal, shall be punished with imprisonment For life, or withimprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine.”

10. In the present case, the extensive injuries suffered by thevictim, being of acid burns involving forehead, scalp, neck, back of chest,Fleft buttock and front of left thigh are distinctly stated in the woundcertificate Ex. P/5.

10.1. The victim sustained the aforesaid injuries due to the effectof the acid poured upon him by the appellant. The acid is undoubtedly acorrosive substance within the meaning of Section 326 IPC. The victimGremained hospitalised for more than 50 days. It would be wholly unrealisticto postulate that even with such extensive acid burn injuries from headto thigh on the left portion of his body and long-drawn hospitalisation, thevictim may not have been in severe bodily pain for a period of more than20 days. The victim also stated in his examination-in-chief that he wasHunable to carry out his daily routines by himself during hospitalisation; OMANAKUTTAN v. THE STATE OF KERALA[DINESH MAHESHWARI, J.]

and there had not been any suggestion in the cross-examination tochallenge such an assertion of the victim. Above all, the Trial Courtspecifically noticed the fact that the victim had suffered permanentdisfigurement on the head, when he was examined in the Court. In thegiven set of circumstances and the facts available on record, the statementof the doctor PW-8 to the effect that the patient could carry on his dailyaffairs without any aid while being treated in the hospital, does not takeaway the substance of the matter that the case was clearly coveredunder clauses ‘Sixthly’ and ‘Eighthly’ of Section 320 IPC. In fact, eventhe doctor PW-8 stated that there was no immediate disfigurement duringthe time the skin was healing; and that the scars would develop onlylater.

11. It needs hardly any emphasis that the act of causing grievoushurt by use of acid, by its very nature, is a gruesome and horrendousone, which, apart from causing severe bodily pain, leaves the scars anduntold permanent miseries for the victim. The legislature having takennote of the gravity of such an offence has, by way of Act No. 13 of2013, inserted Sections 326A and 326B IPC, providing higher punishmentwith minimum imprisonment for the offences of voluntarily causinggrievous hurt by use of acid and voluntarily throwing or attempting tothrow acid. The present one being a matter relating to the offencecommitted in the year 1997, we need not elaborate on the provisionsnow inserted, but, looking to the gravity of offence, the punishment asawarded in this matter prima facie appears to be rather inadequate. Itwas for this reason that, while entertaining the matter, this Court hadissued notice to examine the question if the punishment deserves to beenhanced.

12. However, having regard to the facts and circumstances of thecase and more particularly the facts that the offence was committed inthe year 1997 and the accused-appellant is now said to be 63 years ofage, we would refrain from enhancing the punishment and would preferleaving the matter at that only.

13. For what has been discussed hereinabove, this appeal failsand is, therefore, dismissed.

Devika Gujral

Appeal dismissed.

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