In a latest, learned, laudable and landmark judgment titled Mahesha vs State By Malebennur Police Davanagere in Criminal Appeal No. 512/2016 (C), the Karnataka High Court while displaying zero tolerance for crimes against humanity laid down in no uncertain terms that, “Acid attack is a crime against basic human rights and also violates the most cherished fundamental rights guaranteed under Article 21 of the Constitution of India.” It must be apprised here that a Division Bench of Justice E Veerappa and Justice V Srishananda of Karnataka High Court while confirming the sentence of life imprisonment imposed under Section 326 (A) of the Indian Penal Code, on one Mahesha (32) who is a jilted lover said unambiguously that, “The alleged acid attack by the accused on PW8 (Victim) merely on the ground that, she refused to marry him as her parents did not give consent, the accused cannot treat the victim as slave and pour acid on her face and body. The brutality of the accused shocks the conscious of this Court.” There has to be zero tolerance for heinous crimes like acid throwing which under no circumstances can ever be justified and the perpetrator cannot be allowed to escape unscathed or dealt with leniently under any circumstances!
To start with, Justice B Veerappa who has authored this brief, brilliant, balanced and bold judgment for a two Judge Bench of Karnataka High Court comprising of himself and Justice V Srishananda sets the ball rolling by first and foremost observing in para 1 that, “The accused filed the present criminal appeal against the impugned judgment of conviction and order of sentence dated 25.02.2016 made in S.C.No.86/2014 on the file of the II Additional District & Sessions Judge, Davangere sentencing him to undergo life imprisonment and to pay fine of Rupees Ten Lakhs with default clause for the offence punishable under the provisions of Section 326A and sentencing him to undergo life imprisonment with fine of Rs.50,000/- for the offence punishable under Section 307 of IPC with default clause.”
While elaborating on the prosecution’s case, the Bench then enunciates in para 2 that, “The case of the prosecution is that, initially, the accused has made proposal to marry the victim-PW.8 and her family members did not give consent for the same, thereby, the accused felt disgusted and with an intention to take revenge on her, he decided that she should not marry anyone else and to disfigure her face or to take her life, on 31.01.2014 at about 4.40 p.m., when PW.8 was proceeding on public road situated near Malladara Gowramma house along with PW.3-Raghu, the accused came on his motorcycle bearing registration No.KA 17/EL 5938 with an intention to disfigure her face so as to prevent her from marrying anybody, he threw acid on her face, back, hands and caused grievous corrosive injuries and thus, disfigured her face and body. During the acid attack on PW.8-the victim, acid also fell on PW.3-Raghu and he also sustained corrosive injures on his face and head and thus, the accused caused corrosive injuries to both PW.8 & PW.3.”
As it turned out, the Bench then states in para 3 that, “Based on the complaint lodged by PW.11- Rangappa-the brother of the victim, the Jurisdictional Police registered Cr.No.24/2014 under the provisions of Sections 326A, 326B and 307 of IPC and after investigation, filed charge sheet against the accused for the aforesaid offences.”
Of course, the Bench then discloses in para 4 that, “After committal of the matter, learned Sessions Judge secured the presence of the accused and framed charges on 21.01.2014 under the provisions of Section 307, 326A and 326B of IPC against the accused and read over and explained the charges to the accused in the language known to him. The accused pleaded not guilty and claimed to be tried.”
As we see, the Bench then states in para 5 that, “In order to prove the guilt of the accused, the prosecution examined in all PW.1 to PW.24 and marked the material documents as Ex.P1 to Ex.P24 and material objects as MOs.1 to 8. An exercise note book was marked as Ex.D1 by defence. After completion of the evidence of the prosecution witnesses, the statement of the accused as contemplated under Section 313 of Cr.P.C was recorded and the accused denied all incriminating circumstances adduced against him by the prosecution witnesses. He has not adduced any evidence except marking Ex.D1.”
To put things in perspective, the Bench then envisages in para 6 that, “Based on the aforesaid material on record, learned Sessions Judge framed two points for consideration as under:
“(1) Whether the prosecution prove its case against the accused beyond all reasonable doubt that, on 31.1.2014 at about 4.40 PM when CW.8 Kavitha D/o Hanumanugowda, alongwith CW.9 Raghu S/o.Nayaruj, was proceeding on a public road situated near the house of Malladura Gowramma. situated at Kokkunur village, Hariharu latuk, thus accused came on his motorcycle bearing Reg. No.KA 17/ EL 5938, and he with an intention to disfigure her face and also to prevent her from marrying anybody, as she refused to marry him, he threw acid on her face, back, hands and caused grievous corrosive injuries to her, knowingly that such injuries are likely to cause death of CW 8 and thus he has made an attempt on the life of CW.8, and if by that act if he had caused her death, then he would have been guilty of murder, and thereby committed an offence punishable under Sec: 307 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that, on the above said date, time and place, this accused with an intention to disfigure the face of CW.8 Kavitha and also to prevent her from marrying anybody, as she refused to marry him, he threw acid on her face, back, hands and also on the body of CW.9 Raghu and caused simple and grievous corrosive injuries to them, and thereby committed the offences punishable under Sec 326 (A) & (B) of IPC?”
Considering both oral and documentary evidence on record, learned Sessions Judge answered both the points in affirmative holding that the prosecution has proved beyond reasonable doubt that on 31.01.2014 at about 04.40 p.m., when PW.8-the victim was proceeding alongwith PW.3-Raghu on public road near the house of Malladara Gowramma situated near Kokkanur village, the accused came on his motorcycle bearing registration No.KA 75/EL 5938 in order to disfigure her face and also to prevent her from marrying anybody, as she refused to marry him, he threw acid on her face, back, hands and caused grievous corrosive injuries to her, knowingly that such injuries likely cause death of PW.8 and thus, he has made an attempt on the life of PW.8. If by that act, if he had caused her death, then he would have been guilty of murder and thereby, committed an offence under Section 307 of IPC and further, recorded a finding that the accused with an intention to disfigure the face of the victim-PW.8 and also prevent her from marrying anybody, he threw acid on her face, back, hands and also on the body of PW.3-Raghu and caused corrosive injuries by acid and therefore, committed an offences punishable under the provisions of Section 326A of IPC. Accordingly, learned Sessions Judge by impugned judgment and order of sentence proceeded to convict the accused for the offences punishable under the provisions of Section 326A of IPC and sentenced to undergo life imprisonment and to pay a fine of Rupees Ten lakhs in default of payment of fine, to undergo simple imprisonment for five years and imprisonment for life with fine of Rs.50,000/- in default to undergo simple imprisonment for one year for the offence punishable under Section 307 of IPC. Hence, the present appeal.”
Quite rightly, the Bench observes in para 33 that, “Great Saint and Scholar of our Country – Swami Vivekananda stated that “the best thermometer to the progress of a nation is its treatment of its women”. Therefore, the acid attack by the accused on PW.8 to fulfill his wish to marry her against her will and her parents, is violation of personal liberty as contemplated under Article 21 of the Constitution of India. The ‘acid attack’ caused physical scar on the face and body of PW.8 and the corrosive injuries on PW.3, a minor boy will heal up by spending lacs of rupees towards plastic surgery. On record, there is an estimation of expenses involved for reconstructive surgery dated 05.07.2014 issued by the Health Care Service India Private Limited. As per the same, a sum of Rs.22,50,000/- was estimated for reconstructive surgery. But the mental scar on victims will remain for ever till their death. Therefore, the evidence of the victim is more reliable, which corroborates with the evidence of the other prosecution witnesses.”
Adding more to it, the Bench then notes in para 34 that, “Our view is fortified by the dictum of judgment of the Hon’ble Supreme Court in the case of State of Punjab vs. Bawa Singh reported in (2015) 3 SCC 441, at Paragraph No.16 it is held as under:
‘One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.’”
Be it noted, the Bench then holds in para 37 that, “Learned Sessions Judge on considering both oral and documentary evidence on record came to the conclusion that the involvement of the accused in the acid attack on PW.3 and PW.8 attracts the provisions of Section 326A of IPC and imposed life imprisonment with fine of Rupees Ten Lakhs. Because of the acid attack on PW.8 by accused, PW.8 has to suffer throughout her life. Brutality on her by the accused will be remembered by her, every moment of life leaving her as deadwood and she has to suffer mental agony throughout her life, which cannot be compensated in terms of money. Admittedly, the acid attack made by accused on the face of the victim disfigured her permanently and the doctor, who treated the victim also stated that the injures are grievous in nature. Therefore, the trial Court is justified in imposing imprisonment of life and fine of Rupees Ten lakhs for the offence punishable under Section 326A of IPC.”
In hindsight, the Bench then adds in para 38 that, “On careful perusal of the original records especially Ex.P6, the original photograph prior to acid attack and Exs.P7 & P8, the photograph showing disfigurement after acid attack as well as Ex.P9, the corrosive injures on the head of PW.3-Raghu, clearly establish the gravity of the attack. Though the doctor has made a plastic surgery, the disfigurement marks is permanent on her body. Even otherwise, the Court cannot shut its eyes to obnoxious growing tendency of young persons like accused resorting to use corrosive substances like acid for throwing on girls, causing not only severe physical damage, but also mental trauma to young girls. In most of the cases the victim dies because of severe burns and septicemia or even if luckily survives, it will only be a grotesque disfigured person, who even if survive, lives with mangled flesh, “hideous zombie like appearance and often blind if acid is splashed on face and suffer a fate worse than death”. The imposition of appropriate punishment is the manner in which the Court responds to the society’s cry for justice against the such criminals. Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime.”
Most remarkably, the Bench then quite fittingly holds in para 39 that, “The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Taking judicial note that such restorative surgeries cost a fortune and if unfortunately the parents or the relatives of the victim are poor or even from middle class strata, they cannot afford or spend the huge amount and ultimately even after series of surgeries the result would be not fully restoring the damaged face as has been done in the present case. Admittedly, in the present case, the damage caused by the accused throwing acid on the victim is immense, irreparable and cannot be retractable and the victim has to suffer throughout her life. Therefore, the accused is not entitled for any lenience or mercy to be shown. When a woman is thrown acid on her face, what is inflicted is not merely physical injury but the deep sense of some deathless shame. She has to hide her face to the Society and the victim woman body is not a plaything and the accused cannot take advantage of it in order to satisfy his avenger and the Society will not tolerate such things any longer. The crimes against women continued in a never ending cycle. As throwing acid on young women or young lady and minor boy is more dangerous than murder and same cannot be tolerated by any father, mother, husband, children of the women etc and society at large. Therefore, it is high time to deal with the criminals/acid attackers with iron hand.”
Quite aptly, the Bench then points out in para 42 that, “Today, world is suffering from the menace of acid attack. Number of countries are fighting against this menace across the globe. The study conducted by United Nations Children’s Fund depicts “Acid attack is a serious problem all over the world, even children are victims of acid attack in many cases. In an Acid attack, acid is thrown at the face or body of the victim with deliberate intent to burn and disfigure. Most of the victims are girls, many below the age of 18, who have rejected sexual advances or marriage proposals. Acid attack or vitriolage act of throwing acid onto the body of a person “with the intention of injuring or disfiguring out of jealousy or revenge”. The most common types of acid utilized in these assaults include sulphuric, nitric, and hydrochloric acid. Attack through acid rarely kills but it causes severe physical, psychological and social scarring. The victims of acid violence are overwhelmingly women and children, and attackers often target the head and face in order to maim, disfigure and blind a person for life and push her in everlasting life of pain and apathy.””
Consequences of acid attack
While elaborating on the onsequences of acid attack, the Bench then enunciates in para 44 that, “Acid attack victim faces long-term consequences. After the attack, life of victim itself changes and even their loved ones starts to ignore the victim due to their horrific physical appearance. Such attack leaves victim handicapped in some way rendering them dependent on either their spouse or family. For everyday activities these dependencies are increased by the fact that many acid survivors are not able to find suitable work due to vision and physical handicaps.
Majority of the victims have to face psychological effects which included sympathetic behavior of family, ignorance of children and taunting behavior of relatives. The findings reflected that females were mentally disturbed and they are trying to reduce their stress through weeping and shouting on others. Other psychological effects like eternal trauma, social isolation and suicide plan were also found. While other belongings like fear, threatening and frustration were very high. The acid attacks adversely impact all aspects of the survivors’ lives. The psychological consequences were severe in many instances rendering the survivors mentally retard and eternally shocked.”
Social And Economic Consequences
It is worth noting that the Bench then rightly underscores in para 45 that, “Acid attacks usually leave victims handicapped in some way, rendering them dependent on either their spouse or family for day to day activities, such as eating and running errands. They face a lifetime of discrimination from society and they become lonely. These dependencies are increased by the fact that many acid survivors are not able to find suitable work, due to impaired vision and physical handicapped. As a result, divorce, abandonment by husbands is common in the society.”
Furthermore, the Bench then also adds in para 46 that, “Moreover, acid survivors who are single when attacked almost certainly become ostracized from society, effectively ruining marriage prospects. They are embarrassed that people may stare or laugh at them and may hesitate to leave their homes fearing an adverse reaction from the outside world. Unmarried victims are not likely to get married and those victims who have got serious disabilities because of an attack, like blindness, will not find jobs and earn a living. Discrimination from other people, or disabilities such as blindness, makes it very difficult for victims to fend for themselves and they become dependent on others for food and money.”
Most significantly, the Bench then brings out in para 47 that, “As per the National Crime Records Bureau of India, the acid attack in India from 2014 to 2019 is as under:
Year Number of Cases Reported
2014 309
2015 222
2016 167
2017 244
2018 228
2019 240
The case in hand is an example of uncivilized and heartless crime committed by the accused. It is completely unacceptable that concept of leniency or mercy can be conceived of in such a crime. A crime of this nature does not deserve any kind of clemency. Emphatically one has to say that it is individually as well as collectively intolerable. The accused might have felt that his ego had been hurt by such a denial to the proposal marriage by PW.8 or he might have suffered a sense of exaggeration, sense of honour or might have been guided by the idea that revenge is the sweetest thing that one can be wedded to when there is no response to the unrequited love; but, whatever may be the situation, the criminal act, by no stretch of imagination, deserves any leniency or mercy. The accused might have suffered emotional distress by the denial, yet the said feeling could not to be converted into vengeance to grant a licence to act in a manner like he has thrown acid on PW.8. “The brutal act of the accused on PW.8 shocks our conscious and when there is medical evidence that there was an acid attack on the young lady aged about 29 years and PW.3, minor boy and the circumstances having brought home by cogent evidence and the conviction is given the stamp of approval, there is no justification to reduce the sentence as contended by the learned counsel for the appellant.””
While elaborating on the most relevant Apex Court ruling, the Bench then points out in para 48 that, “How to appreciate a case in respect of incident where acid attack has taken place, was subject matter of the judgment of the Apex Court in the case of Laxmi -vsUnion of India and Others reported in (2014)4 SCC 427, the Hon’ble Supreme Court has set out series of guidelines at paragraphs 7, 8, 9 to 9.6, 11 and 15 which read as under:
7. In our opinion, all the States and Union Territories which have not yet framed rules will do well to make rules to regulate sale of acid and other corrosive substances in line with the Model Rules framed by the Central Government. The States, which have framed rules but these rules are not as stringent as the Model Rules framed by the Central Government will make necessary amendments in their rules to bring them in line with the Model Rules. The Chief Secretaries of the respective States and the Administrators of the Union Territories shall ensure compliance with the above expeditiously and in no case later than three months from the receipt of the draft Model Rules from the Central Government.
8. The Centre and States/Union Territories shall work towards making the offences under the Poisons Act, 1919 cognizable and non-bailable.
9. In the States/Union Territories, where rules to regulate sale of acid and other corrosive substances are not operational, until such rules are framed and made operational, the Chief Secretaries of the States concerned/Administrators of the Union Territories shall ensure the compliance with the following directions with immediate effect:
9.1. Over the counter, sale of acid is completely prohibited unless the seller maintains a log/register recording the sale of acid which will contain the details of the person(s) to whom acid(s) is/are sold and the quantity sold. The log/register shall contain the address of the person to whom it is sold.
9.2. All sellers shall sell acid only after the buyer has shown: (a) a photo ID issued by the Government which also has the address of the person; (b) specifies the reason/purpose for procuring acid.
9.3. All stocks of acid must be declared by the seller with the Sub-Divisional Magistrate (SDM) concerned within 15 days.
9.4. No acid shall be sold to any person who is below 18 years of age.
9.5. In case of undeclared stock of acid, it will be open to the SDM concerned to confiscate the stock and suitably impose a fine on such seller up to Rs 50,000.
9.6. The SDM concerned may impose fine up to Rs 50,000 on any person who commits breach of any of the above directions.
11. The SDM concerned shall be vested with the responsibility of taking appropriate action for the breach/default/violation of the above directions.
15. The Chief Secretaries of the States and the Administrators of the Union Territories shall take necessary steps in getting this order translated into vernacular and publicise the same appropriately for the information of public at large. List the matter on 3-12-2013.”
Quite forthrightly, the Bench then holds in para 53 that, “Therefore, learned trial Judge is not justified in convicting the accused for imprisonment of life under the provisions of Section 307 of IPC with fine of Rs.50,000/-, when the accused has already been convicted for the offence under Section 326A imposing life imprisonment with Rupees Ten lakhs fine. The offence under section 307 of IPC telescopes in to offence under section 326A of IPC. Therefore, the punishment imposed by the learned judge under Section 307 cannot be sustained. However, in view of dictum of the Hon’ble Supreme Court in the case of Muthuramalingam and others vs. State represented by Inspector of Police reported in AIR 2016 SC 3340, the benefit under section 428 Cr.P.C. is not available, when the court convicts the accused for life imprisonment. Hence, we make it clear that the accused is not entitled to the benefit of set off under Section 428 of Cr.P.C.”
While stating the ostensible, the Bench then holds in para 55 that, “It is settled position of law that a person cannot be tried and convicted for a single offence twice. It is a guarantee enshrined in Article 20(2) of the Constitution of India, which clearly debars double jeopardy. For ready reference Article 20(2) of the Constitution reads as hereunder:
“20(2) No person shall be prosecuted and punished for the same offence more than once.””
What’s more, the Bench then makes it pretty clear in para 56 that, “In the case on hand, when accused is tried for specific offence carved out under the Indian Penal Code for the offence of acid attack, trial Court resorted to Section 307 of IPC, having regard to gravity of offence especially after effects of the acid attack cases discussed supra. The Legislature in its wisdom carved out a separate and distinct offence punishable under Section 326A of IPC., for an action wherein the acid is used as a weapon for attacking the innocent, as is referred to supra and prescribed suitable punishment. Therefore, the action of the accused can be traced to and punished only under Section 326A of IPC and the said action of the accused cannot be tried and punished under Section 307 of IPC along with Section 326A of IPC.”
To put it differently, the Bench then also points out in para 57 that, “In other words, the offence under Section 307 of IPC which was available to the prosecution in the absence of Section 326A of IPC., was justifiable. Since prosecution has invoked Section 326A of IPC and trial Court accepting the prosecution case, convicted the accused for the offence punishable under Section 326A of IPC., and ordered for imprisonment of life, convicting the accused again for the same action under Section 307 of IPC would certainly require interference by this Court by resorting Article 20(2) of the Constitution of India. Moreover, even if the offence under Section 307 of IPC., is taken into consideration as required in the case on hand, the same has merged into Section 326A of IPC., and therefore, action of the accused should be only treated as offence punishable under Section 326A of IPC and not under Section 307 of IPC by applying the doctrine of merger.”
Conclusion
Truth be told, the Bench then holds in para 58 that, “On re-appreciation of the entire oral and documentary evidence on record and in the light of the judgments of the Hon’ble Supreme Court cited supra, we answer the points raised in the present criminal appeal as under:
(i) The first point raised in the present criminal appeal is answered in the negative holding that the learned Sessions Judge is not justified in convicting the appellant/accused for the offence punishable under Section 307 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.50,000/- with default clause in the facts and circumstances of the case.
(ii) The second point raised in the present criminal appeal is answered in the affirmative holding learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Section 326A of IPC and sentencing him to undergo imprisonment for life and to pay a fine off Rs.10,00,000/- with default clause in the facts and circumstances of the case.
For the sake of clarity, the Bench then clarifies in para 59 that, “At this stage, it is relevant to state that it is not in dispute that the victim has suffered corrosive injuries in the unfortunate incident occurred in the case on hand and she has spent large sums of money for plastic surgery. Therefore, this is a fit case to recommend that victim is entitled to compensation as contemplated under the provisions of Section 357-A(3) of the Code of Criminal Procedure. In view of the above, the victim is permitted to approach the District Legal Services Authority, Davangere by filing an application seeking adequate compensation. If such an application is filed, the District Legal Services Authority taking into consideration the young age of the victim, who was a teacher and that she has suffered corrosive injuries in the unfortunate incident, shall arrive at the appropriate quantum of compensation and make suitable recommendations.”
Finally, the Bench then holds in para 60 that, “In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction and order of sentence dated 25/26.02.2016 made in S.C. No.86/2014 on the file of the II Addl. District & Sessions Judge, Davangere, insofar as convicting the appellant/accused for the offence punishable under Section 326A of IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.10,00,000/- (Rupees ten lakhs only) and in default of payment of fine to undergo simple imprisonment for five years, is hereby confirmed.
(iii) The impugned judgment and order passed by the trial Court insofar as convicting the appellant/accused for the offence punishable under Section 307 of IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.50,000/- with default clause, is hereby set aside. The accused is hereby acquitted for the offence punishable under Section 307 of IPC.
(iv) In exercise of appellate powers of this Court under the provisions of Section 357(3) of the Code of Criminal Procedure, on deposit of the fine amount, a sum of Rs.9,75,000/- (Rupees nine lakhs seventyfive thousand only) shall be paid to victim (PW.8) as compensation and remaining amount of Rs.25,000/- (Rupees twentyfive thousand only) shall vest with the State Government towards defraying expenses.
(v) The Victim (PW.8) is permitted to approach the District Legal Services Authority, Davangere by filing an application seeking adequate compensation. If such an application is filed, the District Legal Services Authority taking into consideration the young age of the victim, who was a Teacher and that she has suffered corrosive injuries in the unfortunate incident and has spent large sums of money for plastic surgery, shall arrive at the appropriate quantum of compensation and make suitable recommendations.
Ordered accordingly.”
To conclude, the sum and substance of this notable ruling is that acid attack cannot be justified under any circumstances and there has to be zero tolerance for such type of heinous crimes. Those who dare to commit such heinous crime must be always punished for it most strictly! This alone explains why the Karnataka High Court Bench comprising of Justice B Veerappa and Justice V Srishananda has also confirmed the sentence of life imprisonment that was imposed on the accused Mahesha and Rs 10 lakh fine also. Acid throwing on anyone by anybody cannot be justified under any circumstances. No doubt, it is only and only the most strictest punishment that should be always awarded for such type of most heinous and abominable offences and this is exactly the broad message that the Karnataka High Court has also commendably sought to send out by this noteworthy ruling!
Sanjeev Sirohi