MANU/SC/0715/2019

Equivalent Citation: AIR2019SC 2314, 2019 (109) AC C 706, 2019(2)N.C .C .669, 2019(3)RC R(C riminal)285, 2019(7)SC ALE652,
(2019)6SC C 262, 2019 (6) SC J 270

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 873 of 2019 (Arising out of Special Leave Petition (Crl.) No.
6293/2018)
Decided On: 09.05.2019
Appellants: Omanakuttan
Vs.
Respondent: The State of Kerala
Hon'ble Judges/Coram:
Abhay Manohar Sapre and Dinesh Maheshwari, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Thomas P. Joseph, Sr. Adv., K. Parameshwar,
Rajitha T.H., Benny Antony and Surender Kumar Gupta, Advs.
For Respondents/Defendant: Nishe Rajen Shonker, Anu K. Joy, Alim Anvar and
Reegan S. Bel, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS IN WHICH SENTENCE AWARDED IS UPTO
FIVE YEARS
JUDGMENT
Dinesh Maheshwari, J.
1. Leave granted.
2 . In this appeal, the Accused-Appellant has called in question the judgment and
order dated 05.06.2018 in Criminal Revision Petition No. 2859 of 2004 whereby, the
High Court of Kerala at Ernakulam upheld the judgment and order dated 23.09.2004
passed by Additional District and Sessions Judge, Thodupuzha in Criminal Appeal No.
253 of 2002 affirming the judgment and order dated 04.12.2002 by the Judicial First
Class Magistrate, Idukki in CC No. 126 of 1999 whereby, the Accused-Appellant was
found guilty of the offence punishable Under Section 326 of the Indian Penal Code
('IPC') and was sentenced to simple imprisonment for one year together with fine of
Rs. 5,000/- and default stipulation.
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-Appellant and the
injured victim Sunil Kumar (PW-1) were neighbours. On 26.11.1997 at about
6 p.m., while the victim PW-1 was passing through Mannathara-
Thopramkudy Panchayat Road, the Appellant along with his wife (Accused
No. 2) poured acid on the victim from a ridge on the left side of the road.
Allegedly, the Appellant and the victim had previous enmity due to which, the

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 Appellant poured acid, causing serious injuries over 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 offence Under Section 326 read with Section 34
Indian Penal Code. The case was tried by the Judicial First Class Magistrate in
CC No. 126 of 1999, wherein ten witnesses were examined on behalf of the
prosecution.
3.2. PW-1, the injured victim, in his testimony stated that the Accused-
Appellant poured red-coloured liquid upon him from a yellow bucket while he
was coming back from Thopramkudy; that the liquid was poured upon him
from a height on the left side of the body due to which, 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 tea shop; and PW-4 and PW-5 took
him to hospital where he remained as inpatient for 3 months. In response to
the question if he was capable of doing his daily routine by himself during
those 3 months, he replied in the negative. 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 seen the victim running towards the teashop.
3.3. The treating doctor of the victim, PW-8 stated that the victim was
examined by him on 26.11.1997 at about 7.45 p.m. and that acid burns were
present on the left side of the body of the victim, involving forehead, scalp
and neck, back of chest, left buttock and front of left thigh; that the victim
remained an inpatient and was discharged on 18.01.1998. He further stated
that there was a chance of disfigurement of the injured area. In cross-
examination, the doctor stated that the victim could carry on his daily affairs
while under treatment; that there was no disfigurement at the time of
drawing the wound certificate (Ex. P/5) as the skin was healing and that
scars would develop only later. In defence, the Accused examined one
witness DW-1 who suggested that on the date of incident, the Appellant was
working as carpenter in his house until 6 O'clock in the evening.
3.4. After scrutinizing the relevant evidence, the Judicial Magistrate First
Class, by his judgment and order dated 04.12.2002, convicted the Appellant
for the offence Under Section 326 Indian Penal Code and sentenced him as
mentioned hereinbefore. However, the Accused No. 2, wife of the Appellant,
was acquitted for absence of evidence against her.
3.5. The appeal preferred by the Accused-Appellant before the Additional
District and Sessions Judge was dismissed by judgment and order dated
23.09.2004 with the observations that the injuries inflicted by using
corrosive substance were grievous in nature and it was reasonable to think
that the victim was unable to follow his ordinary pursuits during the period
of hospitalisation.
3.6. Further, the revision petition preferred by the Accused-Appellant was
dismissed by the High Court of Kerala, Ernakulam after finding no ground 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

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Accused-Appellant seeking exemption from surrendering was granted at the initial
stage but, on 13.08.2018, after considering the matter for admission and while
issuing notice, this Court recalled the order granting exemption from surrendering;
and notice was also issued to examine the question as to whether any case for
enhancement of the sentence was made out, having regard to the nature of offence
alleged.
5. We have heard learned Counsel for the parties on the merits of appeal as also on
the question of sentence. The main plank of contentions of the learned Counsel for
the Appellant has been that the victim PW-1 never stated in his evidence that he was
in severe bodily pain for 20 days nor did he state that he had suffered disfigurement;
and merely for his hospitalisation for more than 20 days, no inference could be
drawn that he was in severe bodily pain or was unable to follow his ordinary
pursuits. The learned Counsel emphasised on the submissions that in the opinion of
the doctor, the victim was able to follow his ordinary pursuits without any aid and
hence, the ingredients of Section 320 Indian Penal Code are not established. The
learned Counsel submitted that the Appellant deserves to be acquitted and in any
case, when the incident took place about 22 years back and the Appellant is now 63
years of age, enhancement of punishment is not called for. Per contra, learned
Counsel for the Respondent has duly opposed the submissions made on behalf of the
Appellant with reference to the findings recorded against him.
6. Having heard learned Counsel for the parties and having perused the matter placed
on record, we are satisfied that the Appellant has rightly been convicted for the
offence Under Section 326 of Indian Penal Code; and though the punishment awarded
to him, being of simple imprisonment for a term of one year and fine of Rs. 5,000/-
with default stipulation, is rather towards the side of inadequacy but, looking to
overall circumstances of this case, we would refrain from enhancing the same.
7. So far as the basic fact, that the Appellant poured acid on the body of the victim,
is concerned, the same stands proved beyond any doubt by the evidence on record,
including the testimony of the victim PW-1 as also his mother PW-2. The fact that the
victim sustained extensive acid burns on the left side of his body also stands duly
proved in his testimony read with the testimony of the doctor PW-8. The subordinate
Courts as also the High Court have thoroughly examined the material on record and
have returned concurrent findings against the Appellant. After having perused the
record, we find nothing of any infirmity or perversity in such findings.
8. The principal contention urged in this appeal is that the case would not fall Under
Section 320 Indian Penal Code for the victim having not stated that he was in severe
bodily pain for 20 days nor did he state that he has suffered disfigurement and, on
the contrary, the doctor having stated that the victim was capable of carrying on with
his daily pursuits during hospitalisation without any aid. The submissions remain
bereft of substance and do not make out a case for interference, as noticed infra.
9 . Section 320 Indian Penal Code specifies the kinds of hurt that are designated as
grievous hurt and reads as follows:
Section 320 Grievous hurt.- The following kinds of hurt only are
designated as "grievous":
First-Emasculation.
Secondly-Permanent privation of the sight of either eye. Thirdly-Permanent

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 privation of the hearing of either ear, Fourthly-Privation of any member or
joint.
Fifthly-Destruction or permanent impairing of the powers of any member or
joint.
Sixthly-Permanent disfiguration of the head or face.
Seventhly-Fracture or dislocation of a bone or tooth.
Eighthly-Any hurt which endangers life or which causes the sufferer to be
during the space of twenty days in severe bodily pain, or unable to follow his
ordinary pursuits.
Section 326 Indian Penal Code, providing punishment for causing grievous hurt by
dangerous weapons or means, reads as under:
Section 326 - Voluntarily causing grievous hurt by dangerous
weapons or means.- Whoever, except in the case provided for by Section
335, voluntarily causes grievous hurt by means of any instrument for
shooting, stabbing or cutting, or any instrument which, used as a weapon of
offence, is likely to cause death, or by means of fire or any heated substance,
or by means of any poison or any corrosive substance, or by means of any
explosive substance, or by means of any substance which it is deleterious to
the human body to inhale, to swallow, or to receive into the blood, or by
means of any animal, shall be punished with imprisonment For life, or with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
10. In the present case, the extensive injuries suffered by the victim, being of acid
burns involving forehead, scalp, neck, back of chest, left buttock and front of left
thigh are distinctly stated in the wound certificate Ex. P/5.
10.1. The victim sustained the aforesaid injuries due to the effect of the acid poured
upon him by the Appellant. The acid is undoubtedly a corrosive substance within the
meaning of Section 326 Indian Penal Code. The victim remained hospitalised for
more than 50 days. It would be wholly unrealistic to postulate that even with such
extensive acid burn injuries from head to thigh on the left portion of his body and
long-drawn hospitalisation, the victim may not have been in severe bodily pain for a
period of more than 20 days. The victim also stated in his examination-in-chief that
he was unable to carry out his daily routines by himself during hospitalisation; and
there had not been any suggestion in the cross-examination to challenge such an
assertion of the victim. Above all, the Trial Court specifically noticed the fact that the
victim had suffered permanent disfigurement on the head, when he was examined in
the Court. In the given set of circumstances and the facts available on record, the
statement of the doctor PW-8 to the effect that the patient could carry on his daily
affairs without any aid while being treated in the hospital, does not take away the
substance of the matter that the case was clearly covered under clauses 'Sixthly' and
'Eighthly' of Section 320 Indian Penal Code. In fact, even the doctor PW-8 stated that
there was no immediate disfigurement during the time the skin was healing; and that
the scars would develop only later.
11. It needs hardly any emphasis that the act of causing grievous hurt by use of acid,
by its very nature, is a gruesome and horrendous one, which, apart from causing

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severe bodily pain, leaves the scars and untold permanent miseries for the victim.
The legislature having taken note of the gravity of such an offence has, by way of Act
No. 13 of 2013, inserted Sections 326A and 326B Indian Penal Code, providing
higher punishment with minimum imprisonment for the offences of voluntarily
causing grievous hurt by use of acid and voluntarily throwing or attempting to throw
acid. The present one being a matter relating to the offence committed in the year
1997, we need not elaborate on the provisions now inserted, but, looking to the
gravity of offence, the punishment as awarded in this matter prima facie appears to
be rather inadequate. It was for this reason that, while entertaining the matter, this
Court had issued notice to examine the question if the punishment deserves to be
enhanced.
12. However, having regard to the facts and circumstances of the case and more
particularly the facts that the offence was committed in the year 1997 and the
Accused-Appellant is now said to be 63 years of age, we would refrain from
enhancing the punishment and would prefer leaving the matter at that only.
1 3 . For what has been discussed hereinabove, this appeal fails and is, therefore,
dismissed.
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