JUDGMENT
I.S. Tiwana, J.
1. As is commonly said, even God loves things beautiful; as did the appellant. He, however, turned a monster on April 27, 1985, when he tried to disfigure or destroy the very object of his love by pouring sulphuric acid on Dr. (Mrs.) Neelam Marwaha, complainant, PW 18 causing extensive burns on her person. For this he has been held guilty under Section 307, I.P.C. by the Sessions Court, Chandigarh, and has been awarded imprisonment for life and a fine of Rs. 10,000/-. He appeals.
2. The prosecution version as unrolled by Mrs. Marwaha in her initial statement to Mr. Darshan Kumar, ASI, within three hours of her receiving the injuries, is as follows:
I am posted as Senior Research Officer in the Department of Pathology Haematology under I.C.M.R. Advance Centre of the PGL Today, I was on duty from 9.00 a.m. to 1.30 p.m. and I was present in the Laboratory. At about 1.20 p.m. Dr. Bhagwat (Appellant) entered the Laboratory after opening the door. He was holding a bottle of dark brown colour and started splashing the contents of the bottle over my body. I felt sufficient burning sensation. Thereafter he threw the bottle on the floor and the bottle was brokea Then Dr. Bhagwat having caught hold of me tried to throw me on (broken pieces of) the bottle. I started crying. Having opened the door of the Laboratory, I came out and said that Dr. Bhagwat burnt me. Because Dr. Bhagwat was having evil eye and had been making overtures towards me for the last one year. He said that he is the fit person for the girl like me. I gave no response to him. He has thrown something like acid on me in order to take revenge and has tried to murder me. When I raised cry in loud voice, Dr. Kim, Dr. Tarlochan Singh and Dr. Sobha Sehgal also came there and Dr. Bhagwat ran away from the spot. The aforesaid doctors put me in the trolly and got me admitted in the Emergency Ward, where I am under treatment. I have made the above statement in the presence of my right senses, which is correct. Dr. Bhagwat whose full name is A G. Bhagwat is working as an Associate Professor in the Pathology Department.
This led to the registration of a case against him vide F.I.R. No. 151 dated April 27, 1985 (Exhibit PA/3). Later at the trial as P. W. 18 she elucidated her version by providing the necessary details of this crime and the crux of the same is that she joined the institute as a Senior Resident in the Department of Pathology about 3 1/2 years back and got married to Dr. R. K. Marwaha in April, 1979, who was working as a Lecturer in the Department of Paediatrics in the same institute. During the course of time she came to know of the appellant as a Senior Member of the Faculty. She became aware of “his evil designs” towards her somewhere in April, 1984 when he started coming to her house uninvited and offered free lift in his car. Though she declined to accept these overtures or offers, yet on one occasion he not only used “abusive language” against her husband but also told her that she should have been married to a person like him. On an evening in April, 1984, when he visited her house uninvited, she protested to him strongly and told him that all that was unbecoming of a senior member of the Faculty. At that very moment the appellant told her that by that time he had known women of 30 nationalities and knew very well that initially they (women) refuse such overtures on the part of men but later on they succumb to the same”. He did not stop at that At a later stage he even tried to poison the mind of her husband against her by telling him that she was trying to entice him (appellant). He of course had this talk with her husband not in her presence. As a matter of fact it was her husband who conveyed all this to her. One day he came to her laboratory where she was working and when she strongly protested and accused him of spreading false and vexatious insinuations against her, he told her that women who like her played with fire were bound to burn their fingers. He, however, subsequently apologised to her for the said misconduct and told her that “he wanted my friendship at any cost”. In September/October, 1984, the appellant again started misbehaving towards her and on her objection to this, he even tried to poison the mind of the Head of her Department towards her.
3. On the day of occurrence, i.e. April, 27,1985, when she was on duty from 9 a.m. to 1.30 p.m. and was working in her laboratory, he suddenly entered her room at about 1.20 p.m. At that time he was holding a dark brown coloured bottle in his right hand which bore no label Immediately thereafter he started splashing the contents of the bottle at her face and neck. Instinctively she covered her face with her arms. Then he grasped her hair and kept on pouring the contents of the bottle on her head, neck, back and chest He was trying to pour the same on her face. Thereafter he threw the bottle on the ground which broke into pieces. Then he tried to throw her on the broken pieces of glass with her face downwards. She, however, did not fall and as his grip loosened, she immediately rushed out of the room in the corridor and started screaming that “Dr. Bhagwat (appellant) had burnt me”. She, however, fell down on the floor in the corridor. Dr. Kim, PW. 6, who at that moment was standing in the corridor, came running towards her. A shortwhile later, she also noticed that Dr. Tarlochan Singh PW. 7 and Dr. Sobha Sehgal, also rushing towards her. They hurriedly arranged for a trolley and after physically lifting her, put her on the same. They removed her to the Emergency Department while she was having terrible burning and choking sensation in her throat. No sooner did she reach the Emergency Department, her treatment started. Dr. Pradeep Rebala, P. W. 16 attended to her. Some time later the police came to the Emergency Department and recorded her statement (Exhibit PA) referred to above. It was signed by her and was attested by Dr. Pradeep Rebala, PW. 16 and Dr. Ramesh Sharma.
4. On April 30, 1985, she was examined by Mr. T. C. Gupta, then Sub-Divisional Magistrate, Chandigarh and her statement, Exhibit PH, was recorded. Since at that time her right hand was in bandage, she appended her signatures to it with her left hand. Later in terms of the Court order dated June 28, 1985 (Exhibit PX) she was examined by Dr. C.P. Sawhney, PW. 17, on July 3, 1985, after she consented vide Exhibit PY to be so examined by him. Earlier her medico-legal examination had been carried out by Dr. Rebala, PW. 16. She underwent plastic surgery operations five times and was still an indoor patient on the date of making this statement in Court, Le, October 11, 1985.
5. She was subjected to a very thorough and searching cross-examination by the learned defence counsel the trend of which, as is apparent from the records, was that as a matter of fact she wanted some favour from the appellant in the matter of her employment in the Department of Medicine and the appellant had no evil designs towards her. The specific defence version that “on 27-4-85 the accused had come to my laboratory to take back his books and articles of literature because of my having since snapped my connections with him; that on his asking for the return of such books and articles I snubbed him and used unparliamentary language against him; that I told him that he is a fraud” and detestable man; and that I uttered those words deliberately knowing fully well that he is suffering from mental disorder and to provoke him thereby; that in that situation the accused lost his balance of mind, reasoning faculty and without any motive or force and without knowing what he was doing he did some act resulting in certain injuries to me as well as to him” was denied by her. She also denied the suggestion that “the accused did not sprinkle any acid on me deliberately with the intention of disfiguring and killing me”. The above noted version of hers was duly supported in material particulars by Dr. Kim, Dr. Tarlochan Singh, Dr. K. Gosh, Dr. Rebala and ASI Darshan Kumar, P.Ws. 6, 7, 8, 16 and 19 respectively. The evidence of the first two witnesses is in the nature of res gestae evidence.
6. Dr. V. Krishanan of the Department of Pathology, P.G.I., deposed as PW. 2 that on April 27, 1985 at about 1.30 p.m. when he in the company of Dr. Murlidharan Verma, was going to his department, he came across the appellant who was rushing out of that building. The front portion of his shirt was torn. His hands were raised and the same bore some bloodstains. Thinking that he (appellant) had met with some accident, they asked if they could help him in any manner. He did not give any reply and simply nodded his head. They followed him and asked again if they could render any help to him. He had reached his car by that time and told them that he did not require their help. He added that he was going to his house. Thereafter he drove away his car from the P.G.I, complex. When they returned to the department building and were going upstairs, Dr. Anora Saxena, who was coming downstairs, told them that the appellant had thrown acid on Dr. Mrs. Neelam Marwaha and she had been removed to the Emergency of the P.G.I.
7. On his apprehension, the appellant was medically examined by Dr. J.K. Kaira (PW. 1), Medical Officer of General Hospital, Sector 16, Chandigarh, on May 3, 1985 at about 11.15 p.m. and seven burn injuries were found on his person, i.e., anterior abdomen wall near the mid-line; across the front of right side of chest above the level of nipple; right forearm; upper part of right arm; dorsum of right hand; all over the back of left hand; and left forearm. The total percentage of these burn injuries was 5% approximately. These were opined to be the result of some chemical corrosive and were 3 to 8 days old.
8. In his statement under Section 313, Cr. P.C. dated 31st October, 1985, the appellant while either denying or pleading ignorance about all the material particulars of the prosecution case put to him in the light of the evidence on record, left it incomplete in the sense that in answer to the last question as to what else he wanted to say, he stated “1 am innocent” and would make a detailed statement on the next date of hearing which he never did. As a matter of fact on the next two hearings, i.e., on November 8, 1985 and November 16, 1985, he avoided to make the statement on one pretext or the other. This led the Court to pass the order dated November 20, 1985, the material part of which reads as follows ; –
Statement of the accused has been already recorded for eliciting his explanation with regard to the circumstances appearing against him in the prosecution evidence. His answer to the last question as to what else he wants to say, only remains incomplete. He was granted adjournment for (on) 31-10-1985 for giving his detailed statement in answer to that question as Court time was already over by then. He has not so far given his further statement in answer thereto. On having been called upon today he has asked for a week’s time for giving the same. There is no provision of law for allowing him such time for completing his statement under Section 313, Cr. P.C. However, he may file his detailed statement in writing, in answer to that question by the next date. So to come up on 29-11-1985 for the purpose.
The appellant then filed his written statement which runs into 51 pages including the annexures thereto.
9. A bare reading of this written statement indicates that the appellant has tried to depend more on his study general as well as medical to absolve himself of the crime or to raise the plea of his mental illness (maniac depressive psychosis) than to advert to factual happenings or the details of the occurrence as appearing in the prosecution evidence. In this statement he has tried to highlight his attainments as a doctor or as a student of medicine and what has been said about “women” generally by different authors in different countries. All this except the last para, of the statement hardly bears any relevancy to the questions involved in this case. Last para, of this statement reads:
It was DESTINY which brought 2 psychotics (one diagnosed & treated & other , non-diagnosed & untreated) together despite almost complete incompatibility. Under the circumstances, what happened was bound to happen sooner or later.
It appears he sought to depend more on his mental ill health which, as per his stand, had been diagnosed and treated by various doctors and also on the mental disorder of the complainant, Le. PW. 18 whose psychological problem according to him had not been diagnosed or treated, than on the factual happenings that had taken place on April 27, 1985. As a matter of fact he has hardly disputed the veracity of the facts proved against him on the records of the case. Instead he appears to have depended more on his imaginary ailment.
10. In order to sustain the plea of his mental ill health, he has examined Dr. A. Shankar Narain, Assistant Professor of Pharmacology, PGI Chandigarh (DW 1); Dr. Prakash Vasudev Pradhan, Consultant Psychiatrist and Honorary Associate Professor of Psychiatry, KEM Hospital, Bombay (DW 3); Dr. Vijoy K. Verma, Professor and Head, Department of Psychiatry, PGI Chandigarh, (DW 4) and Mr. Mahesh Datt, Senior Technician; Department of Psychiatry, PGI Chandigarh (DW5).
11. While DW 1 has hardly spoken a word about the mental ill health of the appellant or any treatment given to him in this regard DW 5, who is a Technician in the Department of Psychiatry, has stated that on April 4, 1985, when he returned to his room between 10-30 and 11 a.m. hesawa blood sample lying on his table about which he made an enquiry from Dr. Shankar Narain. What enquiry did he actually make from Dr. Shankar Narain (DW.1) was not disclosed by him. All he said next was:
The phial containing that sample of blood had a label bearing the name of the accused. Dr. Shankar Narayan asked me to make estimation of lithium in that blood sample. I made estimation thereof and found the same to be .75 m.e.q./L.
Again, as per his statement on April 23, 1985, he found another sample of blood lying on his table, in similar circumstances. That blood sample too bore the label in the name of the appellant. That time Dr. Shankar Narain instructed him to make estimation of lithium in the blood of the accused whensoever he received sample of his blood. He again found lithium in that blood to the extent of .75 m.e.q./L.
12. As has been pointed out earlier, Dr. Shankar Narain, DW 1, has not said a word about any queries alleged to have been made by this witness or his, i.e., former’s instructions to the witness to examine the blood samples. Besides this it is conceded by him in his cross-examination that” whensoever a patient comes to PGI, he has to get himself registered in the concerned Department and thereafter on the prescription of the doctor concerned, necessary tests are performed. For lithium estimation specific reference is made by the Department of Psychiatry with regard to a particular patient. In the register maintained by me, entry regarding estimation of lithium, found in the blood sample of a particular patient is made, and test report is sent to the Department of Psychiatry. Whenever a case for estimation of lithium in the blood of a particular patient is referred to me by the Department of Psychiatry, I go to that Department for drawing sample of blood for making such estimation. The accused never came to me for the purpose nor was he ever referred to me, in this connection, by the Department of Psychiatry. I never drew sample of his blood for making such estimation. I do not know who drew the blood contained in the said two phials found by me lying on my table on the said two dates.
…I worked under the accused for certain period. I do not actually know whose blood was actually contained in the said two phials.” In the light of this no value can possibly be attached to his evidence.
13. Dr. Pradhan, DW 3, deposed that Dr. R. G. Bhagwat (brother of the appellant) was a friend of his for the last about 18 years. Dr, Bhagwat had been talking to him informally about the appellant and he examined the latter for the first time at the instance of his brother in the year 1982. Thereafter he examined the appellant twice in his consulting room in the year 1983. He also consulted Dr. Bagadia, a senior in the profession, in the matter of diagnosis of appellant’s ailment and its treatment As a result of all that he formed the opinion that he( appellant) “was suffering from maniac depressive psychosis of more than 15 years duration”. For forming this opinion he had taken into consideration the history of the trouble as deposed to by the appellant and revealed by his brother. He advised appropriate drug treatment including lithium, carbonate and anti-depressant drugs. He admitted in his cross-examination that:
I am doing private practice since 1970…. I do not keep record of the examination of psychiatric patients. I have not maintained any Register of my patients at my clinic. I am income-tax assessee. I maintain accounts of my income…. I did not recordany finding with record to the accused in respect of his behaviour on which I base my diagnosis….I had verbal discussions with Dr. Bagadia regarding the trouble and treatment of the accused….I did not prepare record of my findings arrived at after having talks with the accused on all the three occasions….It is wrong to suggest that I have deposed falsely in favour of the accused at the instance of his brother who is my friend.
In the face of this last mentioned part of his statement it is difficult to place any reliance on this witness. But for his bald assertion that the appellant was a case of “chronic maniac depressive psychosis” no assuring circumstances are available to sustain the veracity of his statement. He did talk of two letters dated January 23, 1982 (Exhibit DM) and dated August 4, 1984 (Exhibit DN) written to the appellant’s brother and to him, i.e., the appellant, respectively in which there is a mention about the ailment of the appellant and the treatment to be given or continued by him, but again there is no material to satisfy that these letters were written on the dates purport to have been written and are not created subsequently as was suggested by the prosecutor in the cross-examination of this witness. The postal envelopes in which these letters might have been posted are not available on the record. Therefore, there was no difficulty in creating these two letters to support the defence pleaded.
14. DW. 4, Dr. V.K. Verma, Professor and Head of the Department of Psychiatry, P.G.I. Chandigarh, has of course stated that he came to know of the accused as a colleague from 1970 and it was during that year that Dr. Wig, his predecessor, had discussed something with him about the psychiatric problem of) the appellant. But he made it clear that he had “no direct knowledge-as to the accused having been consulting Dr. N. N. Wig for his any psychiatric trouble…. As far as If remember, I learnt from Dr. Wig that the accused was suffering from some kind of depression. The accused told me that he was suffering from depression off and on. As far as 1 remember, I had a sitting with the accused in this connection in the year 1981”. This evidence, on the face of it, is hardly enough to record a finding that the appellant suffered from any mental illness, much less at the time of commission of the crime, to an extent which can reasonably provide him with a defence of insanity as envisaged by Section 84, I.P.C. The maximum that can be said in the light of this evidence is that years ago… with an interval of a decade. : … the appellant suffered from some sort of depression the extent and cause of which has not been established on record. When such a plea is raised by way of defence, the Court has essentially to look for evidence to answer the question (i) whether the accused at the time of committing the act was of unsound mind and (ii) the unsoundness of mind was of a degree or nature which satisfied the conditions laid down in Section 84, IPC, i.e.,’ he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. None of these requirements laid down by law are, to our mind, satisfied in the instant case. It has been ruled by their Lordships of the Supreme Court . in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat 1964 SC 1563 : 1964) (2) Cri LJ 472, the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed The mere fact that on former occasions the accused had occasionally been subject to insane delusions or had suffered from derangement of mind or that subsequently he had at tunes behaved like a mentally deficient person is per se insufficient to bring his case within the exemption laid down by Section 84, I.P.C. No doubt it is true that generally in such a case it may not be possible to prove the unsoundness of mind at the exact time of commission of the offence, but to assess this factum of unsoundness of mind the Court is well entitled to consider the relevant facts and circumstances immediately preceding as well as subsequent to the commission of the offence. The antecedent and subsequent conduct of the man thus not only becomes relevant but gains importance to judge his state of mind at the time the act was committed From the evidence we fail to find any trace of such insanity on the part of the appellant either prior or subsequent to the occurrence on that day, i.e., April 27, 1985. As per the evidence about which there is no dispute, the appellant had attended his normal duties in his department prior to the commission of the crime and subsequent thereto rushed away from the scene of the crime in order to avoid being apprehended and was able to drive his car to his place of residence. Not only that he, as per his own admission, after leaving the car at his residence and changing the clothes, left for Delhi by bus.
15. All that Mr. Maspdkar, the learned defence counsel has been able to urge to dislodge the evidence of Mrs. Marwaha, PW. 18, is that the prosecution was unfair to the appellant in not examining Dr. R. K. Marwaha, husband of this witness and the Head of her Department. Dr. Miss Mahenti, whom the appellant tried to poison against her and in the absence of their evidence, the statement of this witness about the misbehaviour or ill-designs of the appellant towards her remains uncorroborated He even makes a grouse of the fact that this witness was examined towards the end when most of the material evidence in the case and more particularly the medical evidence had been recorded In a nutshell he expressed that by itself the statement of this witness is nothing more than a tale of exaggerations. We, however, find no weight in these submissions of the learned Counsel. We see nothing lacking in the clear-cut and convincing evidence of Mrs. Marwaha. We fail to see how and why she should malign herself by accusing the appellant of his evil and amorous designs towards her without any reason. What for she had to snub him (the appellant) and use unparliamentary language against him, telling him that he was “a fraud and detestable man” as suggested by the defence during her cross-examination if there was no background as disclosed by her in her statement. We find her statement to be wholly reliable. The non-examination of her husband and Dr. Miss; Mahenti in support of her statement does not in any way weaken the prosecution case. As is often repeated by Courts, the evidence of witnesses is to be weighed and not counted. Further, the appellant had failed to make any grouse of the order in which the witnesses were examined by the Court during the course of his trial. It is nowhere indicated by the record that there was any prayer by the defence counsel for the examination of the injured at any earlier stage of the case. Otherwise also we are well aware that in all trials the evidence of the medical witnesses is recorded earlier than the evidence of the eye-witnesses including the injured. This as a matter of fact helps the defence to subject the eye witnesses or the injured to a more searching and thorough cross-examination.
16. This brings us to the real controversy as to what offence the appellant has committed As has been indicated right in the opening part of the judgment, he has been convicted under Section 307, I.P.C. In order to attract the applicability of this section to the facts of this case, it is necessary to find out that if the victim had met with death could the offence be one under & 302, I.P.C. It is well settled that for conviction under Section 307, I.P.C., if the intention or necessary knowledge to cause death as envisaged by Section 300, I.P.C., which defines murder is there, then it is immaterial whether or not any hurt was caused to the victim by the accused.
In other words, an act though sufficient in the ordinary course of nature to cause death would not constitute an offence under this section if the necessary intention or knowledge on the part of the accused is lacking. Thus for the purposes of this offence what is material is the intention or knowledge and not the consequence of the actual act done for the purpose of carrying out that intention. Intent essentially implies purpose and attempt is an actual effort made in execution of the purpose. Therefore, an attempt f or purposes of Section 307, I.P.C., should stem from a specific intention to commit murder. Intention and knowledge being a man’s state of mind cannot be proved by direct evidence thereof except through his own confession. In the absence of such a confession they can be proved only by circumstantial evidence. In other words, these are matters of inference from all the circumstances available in a case. Such circumstances may well be motive, the preparation made, the declaration, if any, made by the offender at the time of commission of the offence, the weapon used the nature of the injuries actually inflicted Having given our thoughtful consideration to the entire matter in the light of the evidence on record we are of the opinion that both these ingredients of Section 300, I.P.C. are lacking in this case. We do not find any intention on the part of the appellant to kill the victim, i.e., PW. 18. There was no such strong motive on his part that he would like to eliminate her; rather, as has been deposed to by her, the appellant was only having lustful or amorous designs towards her. As has been disclosed by her, the appellant had made his intentions clear to her more than once that a woman like her should have been married to him or he wanted her friendship at any cost. Though the witness succeeded in frustrating these intentions of his yet we are of the opinion that that by itself could not provide the appellant with such a strong motive so as to kill her. It looks probable that on the day of occurrence, i.e., 27th April, 1985, he made the last effort to win her over or persuade her to succumb to his designs but having failed in that, thought of causing her harm or disfigure the very object of his attraction, i.e., her beauty, by sprinkling acid on her. It appears that having failed to achieve his object, he wanted her to be no more attractive to him or even to anybody else than to kill her. Further, the choice of time, place and weapon on the part of the appellant militates against any such intention. He can safely be attributed the knowledge that in case of any injury to her at that time, the best possible medical help would be available to her. Had he to see the end of her life, he could have chosen any other time and place and would have armed himself with a weapon which could be more effective. It is the case of PW. 18 herself that the appellant had almost acquired a habit of visiting her house when she was alone there. Besides this, we are not even sure as to the quantity of sulphuric acid the appellant was carrying at the time of the commission of the crime. No doubt it is true that the prosecution has led evidence in the form of the statement of Mr. P. J. Abraham, Junior Medical Laboratory Technician, PW. 3, to suggest that in the first week of April, 1985 the witness supplied to the appellant “200 Mls of sulphuric acid in a phial” (as per the stand of the appellant he needed this corrosive material to clean the bath rooms and other sanitary fittings, etc. at his residence) yet it is not clear that the appellant was carrying the same quantity of acid even after 20 days, i. e. at the time of the commission of the crime. Further it is available from the evidence of PW. 18 herself that after sprinkling acid on her person and throwing the bottle which broke into pieces, the appellant tried to “throw her on the broken pieces of glass with her face downwards.” This clearly indicates that the primary effort on the part of the appellant was to disfigure her or to spoil her face and looks. .
17. Similarly, we are of the opinion that the appellant did not want to give her injuries which can be said to be likely to cause her death. While analysing the requirements of Section 300, I.P.C. before somebody can be held guilty of murder, a Constitution Bench of the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh , observed:
If there was no intention to kill, then it can be murder only if
(1) the accused knew that the injury inflicted would be likely to cause death, or
(2) that it would be sufficient in the ‘ordinary course of nature’ to cause death, or
(3) that the accused ‘knew’ that the act ‘must’ in all probability cause death.
If the case cannot be placed as high as that and the act is only ‘likely’ to cause death and there is no special knowledge, the offence comes under Section 304, Part II, Penal Code.
It is thus patent that before an intended injury can be said to be ‘likely’ to cause death, it must be an injury which is sufficient in the ordinary course of nature to cause death. An injury “sufficient in the ordinary course of nature to cause death” essentially means that the death will be the most probable result of the injury having regard to the ordinary course of nature. The word ‘likely’ means ‘probably’, and can easily be distinguished from ‘possibly’ : When the chances of a thing happening are very high, we say that it will most probably happen. In the case in hand, we have the opinion of Dr. Pradeep Rebela, PW. 16, who examined the injured immediately after the occurrence. He stated that “the burns on the body of Neelam Marwaha were deep. The nature of the injury was declared by him as grievous”. When the police vide its application dated 27th April, 1985(Ex.PT) required him to express his opinion “as to whether the injuries mentioned in MLR is(are) sufficient to cause death in the ordinary course of nature”, all that this witness had to say vide his endorsement Exhibit PT/1 was that the injuries mentioned in the MLR may cause death in the ordinary course of nature. (Emphasis supplied). It is thus patent that the doctor could not put the injuries suffered by Dr. Mrs. Marwaha at the level that these were likely to cause death in the ordinary course of nature. He, as a matter of fact, accepted in cross-examination that “in the ML report, I have not mentioned the degree of burns, I have given the degree today for the first time on the asking of the Public Prosecutor. I have not given the dimensions of the burns in the M. L. report I have only mentioned the word ‘deep’ with reference to the burns. I have not specified in the M. L. report the data on the basis of which I described the burns as deep….Since the burns were on the face and neck and the same disfigured the patient, I declared them as grievous”. This evidence is thus far short of the stage that the victim was close to death. The use of the word ‘may’ by him in his opinion does not express anything more than a possibility or perhaps. He never found that these injuries were likely to cause death. Even Dr. Sawhney, PW. 17, conceded that “it is incorrect to suggest that 33% burns are usually fatal; rather it depends upon the depth of the burns whether they could prove fatal or not.” We are thus of the firm opinion that had the victim been unfortunate to meet her death, the appellant would not have been guilty of murder. Therefore, in the given facts and circumstances of this case, he cannot be held guilty of an attempt to murder, i. e., the offence prescribed in Section 307, I.P.C. To this extent, the trial Court appears to have gone wrong. At the same time we are satisfied that the evidence on record clearly discloses an offence punishable under Section 326, I.P.C. against the appellant. The injuries caused by him to Dr. Mrs. Marwaha are covered by clause Sixthly if not under clause Eighthly of Section 320, I.P.C. also as is suggested by the learned Counsel for the prosecution. Though during the course of hearing, Mr. Masodkar, the learned defence counsel raised a great deal of controversy in the light of the evidence of DW. 2, Dr. Mrudula Bhaskar Kirloskar about the depth and extent of the injuries suffered by PW. 18, yet we hardly find any necessity to delve into that in view of the above noted conclusion of ours that the act of the appellant is covered by clause Sixthly of Section 320, I.P.C. Further, we find no reasons to give weightage to the evidence of this witness over that of PWs. 16 and 17. It deserves to be pointed out here that an application was moved in the trial Court by the appellant that with a view to find out the dimensions of the injuries on the person of the injured, she be got medically examined by a Board of senior doctors not belonging to the P.G.I. where she was working. After hearing the two sides in the light of the material before it, the Court passed an agreed order on June 28, 1985 that the injured be got examined from Dr. C. P. Sawhney, Prof. and Head of the Department of Plastic Surgery, P.G.I., who was not only an eminent surgeon but was also at that time President of the Association of Plastic Surgeons of India. It was in pursuance of this order that Dr. Sawhney, PW. 17, was requested to medically examine Dr. Mrs. Marwaha in the light of the material available to find out “as much detail about the various alleged burn injuries as possible both in terms of the type of each burn and its dimensions so far as possible.” Dr. Sawhney after examining the injured, prepared his report, Exhibit PZ, which clearly indicates that he thoroughly examined the injured and the various documents prepared at the time of her medical examination by Dr. Rebela, PW. 16 and the subsequent records pertaining to her treatment. In this report while dealing with and detailing the injuries with reference to the areas of the body of the victim on which these had been caused, he observed the following injuries amongst others:
Head & Neck
Face : Depigmented and
erythematous scars
with hyperpigmenta-
tion at periphery on
both cheeks and
right ear. Dept. II degree
Nose : Small patch of
erythematous scar
over the bridge of
the nose. All this
comprises 2% of the
surface area. ... II degree
Left ear :
(i) Complete loss of
lobule and loss of
pinna in its lower
half. IIIrd &
IV degree.
(ii) Deformity of pinna
and skin graft at
back of the ear.
He also observed “there is marked permanent disfigurement, deformity and disfunction as a result of this injury (these injuries).” We are thus satisfied that these injuries and more particularly the ones on the nose and the left ear of Mrs. Marwaha do detract from her personal appearance or looks and thus satisfy the requirements of clause Sixthly of Section 320, I.P.C. Courts of this country have repeatedly held that causing an injury on the nose of a person leaving a permanent scar or chopping off or cutting his ear, amounts to a grievous hurt in terms of this clause. We, however, have our doubts if the injuries suffered by this witness also satisfy the requirements of clause Eighthly of this section. We have already ruled out the first contingency envisaged by this clause, i.e., injuries endangered the life of the victim. The term “endangers life” is much strogner than an expression dangerous to life. This expression appears to have been designedly used by the Legislature to exclude cases of hurt which however dangerous to life, do not put life in a given case to danger. Further, neither of the medical witnesses, i.e. P.W. 16 or 17, has opined that the patient either remained in severe bodily pain or was unable to follow her ordinary pursuits for a period of twenty days. As a matter of fact even she herself has not stated so as P.W. 18. All that was disclosed by her to the Court was “I underwent plastic surgery operation five times while admitted in the P.G.I. I am still indoor patient of P.G.I. and has (have) been brought therefrom by the nurse attending to me.” This evidence, to our mind, falls far short of the requirements of this clause. It is nowhere shown that either the injuries were sufficient to cause severe bodily pain in spite of the treatment she had received for a period of twenty days or she actually did suffer that para Further the mere fact that Mrs. Marwaha did not attend to her duties for the statutory period or that she remained in the hospital for that period is no indication of her inability to do so. It has been ruled in Queen Empress v. Vasta Chela (1895) ILR 19 Bom 247 that an injured man may be quite capable of following his odinary pursuits long before 20 days are over and yet for the sake of permanent recovery or greater case or comfort, be willing to remain as a convalescent in a hospital, especially if he is fed at the public expense. Similar view has been expressed in Khair Din v. Emperor AIR 1931 Lah 280 : 1931-32 Cri LJ 1254, Mathu Paily v. State of Kerala 1962 (1) Cri LJ 652 (Ker), and State (Delhi Administration) v. Mewa Singh (1969) 71 Pun LR (D) 290. So mere remaining in a hospital as a patient for 20 days or more cannot by itself be equated with the patient remaining unable to follow his ordinary pursuits. Anyway, the fact remains that the appellant is guilty of an offence under Section 326, I.P.C., for having caused a grievous hurt to P.W. 18, by use of corrosive substantive, i.e., sulphuric acid. He, therefore, deserves to be punished under this section. Thus keeping in view the totality of the facts and circumstances of the case and more particularly the one that this conviction is not only going to entail his dismissal from service, but is also likely to blast his professional career, we are of the opinion that a sentence of five years’ rigorous imprisonment would sufficiently meet the ends of justice. At the same time we accept the opinion of the trial Court that besides the sentence of imprisonment, the appellant should also pay a sum of Rs. 10,000/- by way of fine, which in case of recovery would be paid to P.W. 18 by way of compensation. In case of default in the payment of this fine, he shall further undergo rigorous imprisonment for two years.
18. The appeal thus stands partially allowed as indicated above.