Delhi District Court
State vs Gyan Bala @ Baby on 6 September, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.39/12
FIR No.135/12
U/s 304, 34 IPC
PS Prasad Nagar
In the matter of
State
Versus
1. Gyan Bala @ Baby
W/o Sh. Raju,
R/o K40, Satbari Colony,
Chhatarpur, Mehrauli, Delhi.
2. Ashok Kumar
S/o Sh. Ram Kumar,
R/o 16/1071E, Tank Road,
Khalsa Nagar,
Karol Bagh, Delhi. .......Accused Persons
Date of institution : 29.09.2012
Date of Judgment : 05.09.2014
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J U D G M E N T
Ashok Kumar (accused no.2) is real brother of Gyan Bala @ Baby (accused no.1). Smt. Sangeeta (since deceased) was wife of Ashok Kumar. She died on 03.07.2012 at hospital, where she was got admitted by her husband on 24.06.2012 with injuries on her person.
Both the above named accused have been facing trial for an offence punishable U/s 304 read with Sec.34 IPC on the prosecution allegation that on 22.06.2012, at about 12'noon, at C303, Sector - 1, Avantika, Rohini, Delhi, both of them in furtherance of their common intention intentionally inflicted such body injuries on the person of Smt. Sangeeta, which were likely to cause her death, as a result whereof she suffered blunt force to kidneys which led to renal failure and she died on 03.07.2012.
2. Present case came to be registered on the written complaint of Sh. Jagdish Parsad Gupta, father of Smt. Sangeeta submitted to SHO PS Parsad Nagar on 26.06.2012.
The allegations levelled by the father of Smt. Sangeeta are that therein are that from th is wedlock, the couple was not blessed with any child; that Ashok Kumar, his soninlaw started residing with some other lady; and that he used to subject his daughter to beatings. He also recorded in complaint previous incident dt.22.06.2012 when his daughter (Smt. Sangeeta) was left by both the accused near Durga Mandir outside the street near his house 2 (parental house of deceased). He also alleged that his daughter had subjected to kick and fist blows. The complainant further alleged in the complaint that for two days there was no news. On 25.06.2012, they contacted Ashok Kumar (accused) on phone. Only then he informed that Smt. Sangeeta had been brought to Dr. RML Hospital. Thereafter, he (complainant) and his son are stated to have visited the hospital where his daughter was lying unconscious since 24.06.2012.
It is case of prosecution that prior thereto on 22.06.2012, after her medicolegal examination and treatment at Ambedkar Hospital, Smt. Sangeeta submitted a written complaint to the Incharge, CAW Cell, Sector 3, Rohini, Delhi, levelling allegations that on that day, at about 12'noon, her husband Ashok Kumar and sisterinlaw Smt. Gyan Bala had subjected her to severe beatings. She explained that they had dealt kick and fist blows on her stomach. Both the accused wanted that she should leave the matrimonial home. Even at the time of its submission to the CAW Cell, she was suffering from pain in her stomach. She also mentioned to have been taken medicines on the same day from Ambedkar Hospital. Further, she alleged in the complaint that after beatings, her husband and sisterinlaw had left her near Durga Temple by the side of Avantika. On these allegations, she prayed for legal action.
It is case of prosecution that on the same day, i.e. 22.06.2012, at about 3 1.22 p.m., information reached PS Vijay Vihar, Delhi from PCR regarding quarrel near Durga Temple by the side of bus stand, Avantika. The PCR staff also apprised the police of a mobile phone no.9136764257. This information was recorded by way of DD no.47B and ASI Brij Mohan was telephonically informed and directed to do the needful.
At about 2.40 p.m., ASI Brij Mohan informed police of PS Parsad Nagar that Jagdish Parsad and Smt. Bimla Devi, parents of Smt. Sangeeta, wife of Ashok Kumar had got her admitted at Dr. Ambedkar Hospital with injured condition. This information was recorded at PS Parsad Nagar vide DD no. 21A.
On 24.06.2012, at about 10.00 a.m., HC Surinder, present on duty at RML Hospital informed police of PS Parsad Nagar regarding admission of Smt. Sangeeta at the hospital, by her husband, vide MLC no.107984/12 after quarrel. On the basis of this information, on DD no.22B was recorded. That is how, SI Abhishek Kumar accompanied by Ct. Jalandher reached RML Hospital as mentioned above.
On receipt of information, SI Abhishek accompanied by Ct. Jalandher reached RML Hospital. He collected MLC in respect of Smt. Sangeeta from the hospital. But the patient was not traceable there. As per report of Doctor, patient had not reached the casualty. The SubInspector could not trace the patient at the address given in the MLC. It was thereafter that SI Abhishek 4 Kumar accompanied by Ct. Anuj reached RML Hospital and found her lying admitted there. The doctor declared her 'not fit' to make statement. The Sub Inspector then appended endorsement to the complaint submitted by Jagdish Parsad which led to registration of this case.
3. Case of prosecution is that on the night intervening 26/27.06.2012 SI Abhishek Kumar accompanied by Ct. Anuj reached H.No.16/1071, EBlock, Tank Road and arrested Ashok Kumar, accused was arrested. Thereafter, SI Abhishek Kumar accompanied by father of Sangeeta reached the matrimonial home of Smt. Sangeeta where he prepared rough site plan of the place of occurrence. He made inquiries from persons of locality and recorded their statements. Once again when the SubInspector reached hospital to record statement of Smt. Sangita, she was declared "unfit" to make statement and as such her statement could not be recorded.
On 03.07.2012, SI Abhishek Kumar received information regarding death of Smt. Sangeeta at RML Hospital. So, he carried out inquest proceedings and got the dead body subjected to autopsy.
In the complaint submitted by Smt. Sangeeta to Incharge of CAW Cell, no proceedings could be conducted on 02.07.2012 as Smt. Sangeeta did not attend CAW Cell and thereafter consequent upon death of Smt. Sangeeta, her father told SI Jai Singh about her death and registration of this case. 5
4. On completion of investigation, challan was put in court. Copies of challan and accompanying documents relied upon by the prosecution were supplied to the accused persons free of costs U/s 207 Cr.P.C. Ultimately, case came to be committed to the Hon'ble Court of Session.
Charge
5. Prima facie case having been made out, charge for an offence U/s 304 read with Sec.34 of IPC was framed against the accused persons on 18.10.2012, to which they pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
6. In order to prove its case prosecution examined, following 19 witnesses: PW1 Dr. R.M. Rajneesh PW2 Dr. Brijesh Patel PW3 Ct. Sumati PW4 HC Partap Singh PW5 WCt. Rubish Yadav PW6 Sh. Ishwar Singh PW7 Sh. Jagdish Prasad PW8 Sh. Dhanender Kumar PW9 Smt. Bimla Devi PW10 Smt. Usha PW11 Inspector Mahesh PW12 ASI Dharam Pal 6 PW13 Sh. Anil Kumar PW14 Smt. Urmil PW15 Sh. Munim Kumar PW16 Sh. Pankaj Soni PW17 HC Dev Dutt PW18 SI Jai Singh PW19 Ct. Anuj Dabas PW20 SI Prakash Roy PW21 Dr. Kulbhushan Prasad PW22 Sh. Ritesh Kumar PW23 ASI Brij Mohan PW24 Inspector Anuj Aggarwal PW25 SI Abhishek Kumar Statement of Accused
7. When examined U/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
Plea of accused Gyan Bala reads as under : "I used to reside during those days at my matrimonial home in Mehrauli. I used to visit my parental house but the allegations levelled against me are false......
As regards occurrence dated 22.06.2014 On that day, I was at my matrimonial home in Mehraulli. The allegations levelled against me and my brother are false. I did not accompany my brother or my sister in law as alleged. I did not give her beatings as alleged. I also did not visit the parental house of Sangeeta or meet Smt. Bimla Devi as alleged........
7 It is false that I and my brother gave beatings to my sister in law. I do not know about other allegations levelled against me as I was at my matrimonial house Mehrauli.......
I did not visit the matrimonial home of Sangeeta on 23.06.2012. On that day, I was at my matrimonial home in Mehrauli........
As regards occurrence dated 24.06.2014 I have no knowledge if any conversation took place between my brother and his father in law. On 24.06.2012, I came to know from my brother Ashok that Sangeeta was not keeping good health and that she was at RML Hospital. I do not know if brother and parents visited the hospital. It is correct that Sangeeta died. She died about 910 days after she was got admitted at the hospital."
Plea of accused Ashok Kumar reads as under : As regards occurrence dated 22.06.2014 "My wife left the matrimonial home on that day at about 10.00 a.m. for her parental house. I do not know if my wife was removed to hospital or got medically examined at the said hospital. On that day, I was present at my shop..................
.......It is wrong that any settlement was arrived at between me and my wife at PS Karol Bagh. However, on that day, I reached in front of PS Prasad Nagar on having been called by my father in law. On reaching in front of the police station, I found my wife and my father in law present there. Without entering the police station, I took my wife to my house whereas my father in law left for his house..........
As regards occurrence dated 24.06.2014 .......... On 24.06.2012, at about 7.00 a.m., I reached the second floor of our house and found my wife lying unconscious. I, with the assistance of my friend Roshan, removed her to the ground floor. I took her to RML Hospital and got her admitted there. I informed my father in law on the day I got my wife admitted at RML Hospital that he should reach the hospital. My mother in law reached the Hospital. My wife remained admitted at hospital for about 89 days and then died......... 8
.......... My wife was physically week. She used to remain ill with pain in her stomach. She also used to suffer from high blood pressure. It is correct that I removed my wife to RML Hospital and got her admitted there in unconscious condition. I do not know about the rest of the allegations. My wife remained admitted at RML Hospital upto 03.07.2012. Police has leveled false allegation that wife was not available or that the address was not traceable........................ .......... It is correct that my wife died on 03.07.2012. I did not receive any notice from CAW Cell. I have no knowledge if my mother in law met SI Jai Singh or told the aforesaid facts. Present case is a false one..........................
I have been falsely implicated in this case. I and my wife lived together happily for 13 years. My wife was physically weak. She used to remain ill. My wife was not properly medically treated at the RML hospital."
8. Arguments heard. File perused.
9. As per prosecution version, Smt. Sangeeta got married to Ashok Kumar (accused) about 12 years back. After the marriage, they started residing at the house in Sant Nagar, Military Road, Karol Bagh, Delhi. On 22.06.2012, Smt. Sangeeta was got medically examined at Dr. Baba Saheb Ambedkar Hospital, Rohini, at 1.50 p.m., when brought there by PCR staff. She was discharged after medicolegal examination. On the same day, she reached CAW Cell in Sector 3, Rohini and submitted complaint, wherein, she levelled allegations that on that day at about 12 noon, she was subjected to severe beatings by her husband and her sisterinlaw Smt. Gyan Bala. She specified that she was hit in her stomach kick and fist blows. As alleged by her, they were saying that 9 she should leave the matrimonial home. She further mentioned in the complaint that she was suffering pain in stomach, even after she had got herself medically treated. She also alleged that after having been subjected to beatings, she was left by her husband and her sisterinlaw near Durga Temple, in the area of Avantika, Rohini. On these allegations, she prayed for legal action.
As noticed above, again on 24.06.2012, Smt. Sangeeta was brought to RML Hospital at 9.15 a.m. This time she was brought there by her husband Ashok Kumar. While she was unconscious. As per alleged history, available in MLC Ex.PW1/A, the patient was found lying unconscious on the floor i.e. at the house at about 4.00 a.m.
10. Ex.PW2/A is the MLC of Smt. Sangeeta prepared at Dr. Baba Ambedkar Hospital, on 22.06.2012 at 1.50 p.m. In this MLC, the column meant for name of relative or friend accompanying is lying blank. In the column meant for the person who brought the patient to the hospital name of ASI Brij Lal of PCR stands recorded. This goes to show that Smt. Sangeeta was brought to the hospital on 22.06.2012 at 1.50 p.m. by ASI Brij Lal of PCR and no one from her family was accompanying her. Even according to PW2 Dr. Brijesh Patel who medicolegally examined Smt. Sangeeta, she was brought to the hospital by ASI Brij Lal of PCR.
PW7 Sh. Jagdish Parsad Gupta, father of Smt. Sangeeta has stated that 10 on 22.06.2012, he and his wife removed their daughter to Dr. Ambedkar Hospital and got her medically examined there.
Smt. Bimla, mother of Smt. Sangeeta while stepping in the witness box as PW9 has stated that she had called PCR staff and thereupon as advised by the PCR staff, she, her husband and son Dhanender Kumar removed Smt. Sangeeta to hospital and got her admitted there.
Sh. Dhanender Kumar, brother of Smt. Sangeeta has deposed as PW8 that he and his parents accompanied police and Smt. Sangeeta to Dr. Ambedkar Hospital and she was medically examined there. So their statements are in contradiction with each other as to who was present at the time PCR removed Smt. Sangeeta.
ASI Brij Mohan has been examined as PW23. According to him on 22.06.2012, while he was serving at PS Vijay Vihar at about 1.22 p.m. DD no. 47B Ex.PW5/A regarding a quarrel was marked to him, whereupon he reached Sector 1, near Durga Mandir, Avantika, Rohini. On reaching there, it transpired that injured had already been removed to Dr. Ambedkar Hospital by PCR. He too reached hospital and collected from there MLC of Smt. Sangeeta. According to the witness, inquiry revealed that dispute / quarrel had taken place between Smt. Sangeeta and her husband and inlaws in the area of Bapa Nagar.
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But there is nothing in his statement to suggest as to who were enquired by him and as to who told him that quarrel had taken place between Smt. Sangeeta and her husband and inlaws. Since the area of Bapa Nagar fell within the jurisdiction of PS Parsad Nagar, he simply opted to inform the police of PS Parsad Nagar, whereupon, SI Ritesh of PS Parsad Nagar reached Ambedkar Hospital, met him and collected the MLC from him. It is in cross examination of PW23 ASI Brij Lal that when he reached Dr. Ambedkar Hospital parents of Smt. Sangeeta were found present there by her side.
Ex.PW4/A is copy of DD no.21A recorded at PS Parsad Nagar on 22.06.2012 at 2.40 p.m. It came to be recorded on information furnished by ASI Brij Mohan of PS Vijay Vihar, Sector 4, Rohini, telephonically to the police of PS Parsad Nagar. The information was to the effect that Smt. Sangeeta, wife of Ashok Kumar had been brought to and got admitted at Dr. Ambedkar Hospital by her parents Sh. Jagdish Parsad Gupta and Smt. Bimla Devi, after a quarrel on Tank Road.
Prosecution has not examined ASI Brij Lal of PCR. He was even not cited as a prosecution witness. It was for the investigating officer of this case to record statements of PCR staff but apparently he failed to do so, for the reasons best known to him.
In absence of statement of ASI Brij Lal of PCR, as rightly submitted by learned defence counsel, it cannot be said as to where ASI Brij Lal found Smt. 12 Sangeeta or as to from where the PCR staff removed Smt. Sangeeta to Dr. Ambedkar Hospital. It cannot be said that parents and brother of Smt. Sangeeta accompanied by PCR staff to Dr. Ambedkar Hospital.
Ex.PW5/A is copy of DD no.47B recorded at PS Vijay Vihar on 22.06.2012 at 1.22 p.m., it was recorded at the police station on receipt of information which from PCR. Wireless Operator told the Duty Officer regarding information was to the effect that there was a quarrel near Durga Mandir by the side or bus stand of Avantika. Wireless Operator was reported this information by Ct. Mohit of PCR. Copy of th is DD entry was assigned to ASI Brij of PS Vijay and that is how ASI Brij Mohan left the police station. On reaching near Durga Mandir, Sector 1, Avantika, Rohini, ASI Brij Mohan learnt that injured had already been removed to Dr. Ambedkar Hospital. He did not find anyone present near Durga Temple or the bus stop. Nearby shopkeepers had told him about removal of the injured to hospital by the PCR staff. Admittedly, ASI Brij Mohan did not record statement of those shopkeepers. Mobile phone no.9136764257 finds mention in this DD entry. The ASI even did not contact the caller whose mobile phone numbers find mention in Ex.PW5/A. He did not record statement of Smt. Sangeeta also for the reasons best known to him.
This Court finds that ASI Brij Mohan did not properly handle the matter on assignment of DD No.47B. Had he properly inquired into the matter, better 13 evidence could be collected to reveal the truth.
11. PW22 SI Ritesh Kumar from PS Parsad Nagar has deposed that on 22.06.2012 at 2.40 p.m. on receipt of DD no.21A (Ex.PW4/A), he reached Dr. Ambedkar Hospital and collected MLC of Smt. Sangeeta. He then deposited the MLC with the doctor to have opinion regarding nature of injury. He did record statement of Smt. Sangeeta, when she was declared fit to make statement. It is pertinent to mention that prosecution has failed to produce or prove on record statement of Smt. Sangeeta so recorded by PW22 SI Ritesh Kumar. Only copy of that statement has been placed on record. Same has been marked as PW22/A for want of original.
In his cross examination, the witness stated that he did not record statement of Smt. Sangeeta at the hospital. He further stated that Smt. Sangeeta did not tell him as to the manner in which she had suffered injuries, which led her to hospital. At the same time, he volunteered that at the police station she told him regarding amicable settlement of the matter. It is also in his cross examination that her inlaws met him at the police station. He did not examine them. Admittedly, he did not visit any place near Durga Mandir to make any inquiry from shopkeepers / neighbours to find as to what had actually happened. He volunteered that he did not so visit or record statement of Smt. Sangeeta as family members of both the sides had come and met him. Fact remains that in absence of original statement, it cannot be said as to what 14 was told or stated by Smt. Sangeeta to SI Ritesh or as to whether she stated any fact regarding occurrence dt.22.06.2014. Even in absence of any inquiry by SI Ritesh Kumar after reaching the disclosed place near Durga Mandir, as to who caused injuries on the person of Smt. Sangeeta which led to her medicolegal examination.
This Court finds that SI Ritesh Kumar also did not properly handle the matter on assignment of DD No.21A. Had he properly inquired into the matter, better evidence could be collected to reveal the truth.
Whether any occurrence took place at matrimonial home on 22.06.2012?
12. In this regard prosecution has examined PW10, 13, 14, 15 & 16.
PW10 It is case of prosecution that Smt. Usha from neighbourhood of matrimonial home of the deceased, made statement before the police during investigation levelling allegations against her husband.
Smt. Usha has been examined as PW10. According to her, relations of Smt. Sangeeta and her husband Ashok Kumar, who used to reside together at their house on Tank Road, Karol Bagh, Delhi, were cordial. According to her, he never saw any quarrel between the couple. She further stated that once Smt. Sangeeta told her that she was not keeping good health. 15
The witness was put leading question by Learned Addl. P.P., when she stated to have displayed ignorance before the police that she had not seen anything so far as Smt. Sangeeta is concerned. When the witness was so examined, nothing useful to the prosecution could be elicited from her. She denied to have told the police that relations between the couple were not cordial or that there used to remain quarrel. She further denied to have told the police that on 22.06.2012, she saw from the roof of her house that Ashok Kumar accused was giving beatings to his wife Smt. Sangeeta. She also denied that Smt. Sangeeta never told her about her ill health. She also denied the suggestion put forth by learned Addl. P.P. that she was not deliberately telling the true facts of the case being neighbourer of Ashok Kumar accused, so as to save him.
PW13 PW13 Anil Kumar also lives in the neighbourhood of Ashok Kumar accused. According to the witness, he never heard about any quarrel between the couple. He displayed ignorance about this and further stated to have not made any such statement before the police. PW13 was also put leading questions by learned Addl. P.P. after seeking permission from the court.
When so examined, the witness denied that the couple was not having cordial relations or that due to relations they started living in separate house at Bapa Nagar or that he stated so before the police. He once again denied to 16 have made any statement before the police. It was suggested to the witness that he was not deliberately stating true facts being neighbour of the accused. The witness denied this suggestion too.
PW14 PW14 Smt. Urmil is also from the neighbourhood of Ashok Kumar accused. According to her, she never heard about any quarrel between Ashok Kumar accused and his wife Smt. Sangeeta. Further according to her, the couple was having cordial relations. It is also in her statement that Smt. Sangeeta expired while she was lying admitted at hospital but this witness displayed ignorance as to what led to her death.
According to witness, once police made inquiries from her about relations of the couple and she told that they were living happily. This witness was also put leading questions by learned Addl. P.P. after seeking permission from the court but nothing useful could be elicited from her.
When so examined, the witness denied to have heard noise of quarrel emanating from the house of Ashok Kumar accused on 22.06.2012 or that having climbed over the roof she saw Ashok Kumar accused giving beatings to his wife. She denied to have stated so before the police or to have made any such statement before the police. The witness further denied to have heard on 24.06.2012 noise of quarrel emanating from the house of Ashok Kumar, accused or that having climbed over the roof she saw Ashok Kumar, accused 17 giving beatings to his wife or that due to the beatings his wife fell down in the varandah or that she so stated before the police. She categorically denied to have climbed over roof of her house. She denied that she was deliberately not stating true facts, being neighbourer of Ashok Kumar accused.
PW15 PW15 Sh. Munim Kumar runs a grocery shop in Bapa Nagar. According to the witness, Ashok Kumar accused and his wife Smt. Sangeeta were having very cordial relations with each other, while they lived at H.No.16/569 situated just in front of his house. Further according to the witness, both of them used to visit the house twice in a month, clean the same and then leave.
This witness was also put leading questions by learned Addl. P.P., after seeking permission from the court. It was suggested to him that he had told the police that H.No.16/569 belonged to sister of Ashok Kumar accused and that Ashok Kumar accused was not having cordial relations with his wife or that he used to come and stay during this night. The witness denied this suggestion and further stated not to have made any such statement before the police. He also denied the suggestion put forth by learned Addl. P.P. that he was deliberately not stating the truth being known to the accused.
PW16 PW16 Sh. Pankaj Soni runs a T.V. repair shop on the ground floor of H.No.16/570, Bapa Nagar. According to the witness, Ashok Kumar, accused 18 used to visit H.No.16/569 i.e. first floor portion owned by her sister Smt. Gyan Bala. Further according to him, parents, sister and wife of Ashok Kumar accused used to visit the said house, but he never saw them residing there.
The witness was put leading questions by learned Addl. P.P. when he denied to have made any statement before the police despite inquiries. But nothing useful to the prosecution could be elicited from him.
Did any incident of cruelty take place with Smt. Sangeeta prior to 22.06.2012?
13. In this regard prosecution has relied on statements of PW7, PW8 & PW9.
PW7 PW7 Sh. Jagdish Parsad Gupta is father of the deceased. As per his statement made in court, Smt. Sangeeta got married to Ashok Kumar, accused about 12 years back. For about two years, relations between the couple were cordial. Smt. Sangeeta was not blessed with any child. As further stated by the witness, Ashok Kumar, accused started residing with another woman living in the neighbourhood.
PW8 PW8 Sh. Dhanender Kumar, brother of the deceased has also stated that his sister used to tell him at the the time of her visits to the parental house that there was some other girl in the life of Ashok accused. 19
It may be mentioned that in his cross examination, PW7 clearly stated to have not seen accused Ashok Kumar living with any other woman. According to him, he was so told by his daughter (since deceased). So, the allegation levelled by PW7 that Ashok Kumar accused started living with another woman is only hearsay evidence. Even otherwise, had Smt. Sangeeta ever told her parents about any such wrongful act on the part of her husband, they must have inquired about it from Ashok and then reprimanded him. In such a situation, they must have come to know of the identity of any such other woman, but there is no such evidence on record.
Even PW8 Sh. Dhanender Kumar admitted in his cross examination to have not seen Ashok Kumar, accused living in the company of any other woman. He candidly stated to have only heard about it. So, statement of PW8 in this regard is also hearsay evidence. Had any such conduct of their sonin law come to the notice of PW9 Smt. Bimla Devi, she must have deposed about it. Surprisingly, PW9 Smt. Bimla Devi, mother of the deceased has nowhere stated that Ashok Kumar, accused started living with another woman.
Ex.PW7/A is the complaint submitted by Smt. Sangeeta to CAW Cell on
22..06.2012. Nowhere in th is complaint, she alleged that her husband was residing with any other woman.
According to PW7father of deceased, relations between his daughter and Ashok Kumar, accused remained cordial for two years. As per statement 20 Ex.PW7/B made by PW7 before the police on 26.06.2012, he did not state therein that relation of the couple were cordial only for two years.
Even otherwise, if their relations remained cordial only for two years, it was for the prosecution to bring material on record as who which fact or facts led to strained relationship of the couple, after two years.
In her complaint Ex.PW7/A addressed to CAW Cell, Smt. Sangeeta, nowhere alleged that she was being subjected to cruelty by her husband or her sisterinlaw for the last 10 years or that their relations remained cordial only for two years.
PW7 Sh. Jagdish Parsad Gupta, father of the deceased, has stated in court that in June,2012, his daughter told him that her husband had started giving her beatings. She further told him that her husband and sisterinlaw Smt. Gyan Bala used to give her beatings by way of kick and fist blows. Ex.PW7/B is the first complaint submitted by PW7 to the police on 22.06.2012. In this complaint, he alleged that husband of Smt. Sangeeta used to subject her to domestic violence by beating her. He nowhere mentioned therein that even Smt. Gyan Bala, sisterinlaw of Smt. Sangeeta also used to subject his daughter to domestic violence by giving her beatings.
Even Smt. Sangeeta in her complaint Ex.PW7/A to CAW Cell mentioned only about a particular incident of 22.06.2012, which took place at about 12'noon. She did not state that even prior thereto her husband and her sister 21 inlaw used to give her beatings or that she had been apprising her parents of such incident. Had any such incident of beatings taken place prior to June, 2012. Smt. Sangeeta would not have omitted to mention about it in her complaint Ex.PW7/A, particularly when the same was being submitted to CAW Cell for legal action.
PW8 Sh. Dhanender Singh has deposed that sometimes quarrel used to take place between the couple, as told to him by his sister Smt. Sangeeta. But in his cross examination, he clearly stated that in his presence, his sister was never caused beatings by any of the accused.
PW9 PW9 Smt. Bimla Devi, mother of the deceased, has furnished a totally different version regarding allegations of cruelty prior to June,2012. According to her, her daughter was treated nicely by her husband and family members at the matrimonial home for about 67 years. Then, parents of Ashok Kumar accused put forth demand of cooler, but PW9 refused to supply it as she had already supplied them a cooler. Thereupon, her soninlaw and his parents started beating her daughter. This fact does not find mention in complaint Ex.PW7/A submitted by Smt. Sangeeta to CAW Cell or in statement Ex.PW7/B made by her father before the police. This fact also does not find mention in the statements of her father and brother, recorded in court. 22
In absence of any cogent and convincing evidence, no reliance can be placed on the sole testimony of Smt. Bimla Devi that parents of Ashok Kumar accused had put forth demand of cooler.
Even otherwise, had any such demand been put forth by parents of Ashok Kumar accused about 67 years after the marriage or on that account Ashok Kumar and his parents had given beatings to Smt. Sangeeta, PW7, PW8 & PW9 would not have kept mum. They would have taken up the matter when Ashok Kumar (accused) or reported the matter to police. But there is nothing on record to suggest that any such step was taken by them.
Whether the incident took place on 21.06.2012?
14. In this regard, there is sole statement of PW9 Smt. Bimla Devi - mother of the deceased, has stated in court about beatings to her daughter on 21.06.2012 by Ashok Kumar, accused. She is the only witness to state about incident dt.21.06.2012, the reason being that her husband (PW7) and her son (PW7) have nowhere stated about any such incident. Even in her complaint Ex.PW7/A, submitted to CAW Cell, Smt. Sangeeta did not mention about any beatings at the hands of her husband on 21.06.2012. Had any such incident taken place she would not have omitted to mention about it while reporting the matter to CAW Cell.
This brings us to the evidence regarding the incident dt.22.06.2012. 23 As regards occurrence dated 22.06.2012
15. In this regard, prosecution has relied on Ex.PW7/A the only complaint by Smt. Sangeeta herself to the police to CAW Cell on 22.06.2012, statements of her parents and brother, neighbours, medical evidence and the other material available on record.
Smt. Sangeeta was examined by Dr. Dhara, Junior Resident, under the supervision of Dr. Brijesh Patel following three injuries were observed on her person :
1. Multiple abrasion measuring 0.5 cm x 0.2 cm on left forearm.
2. Abrasion measuring 0.5 cm x 0.2 cm on anterior aspect of chest.
3. Abrasion measuring 0.5 cm x 0.2 cm on inner aspect of lower lip. In the opinion of Dr. Brijesh Patel, all the three injuries were simple in nature. In his cross examination, doctor stated that possibility of all these three injuries having been suffered on account of fall, cannot be ruled out. It is in his cross examination, that nature of injuries being simple he found that admission of patient in the hospital was not at all required.
According to PW1 Dr. Brijesh Patel, on 22.06.2012, patient Smt. Sangeeta told herself that she had suffered assault on that day at about 12'noon. But there is nothing to suggest as to who had assaulted her or that she named assailant before the doctor.
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According to PW7, on 22.06.2012, Sh. Jagdish Parsad Gupta, father of Smt. Sangeeta, accused Ashok Kumar and Smt. Gyan Bala accompanied by Smt. Sangeeta came to the bus stop near h is house (parental house of Smt. Sangeeta). Gyan Bala, accused came to him and told that Smt. Sangeeta was lying unconscious at the bus stop. Thereupon, he and his wife accompanied by Gyan Bala reached the bus stop and found that Smt. Sangeeta was lying unconscious there. They also found Ashok Kumar accused present there.
When we advert to the statement of PW9 Smt. Bimla Devi, it is found to be in total contradiction with the version narrated by her husband (PW7). According to her, on 22.06.2012, both the accused i.e. Ashok Kumar and Smt. Gyan Bala came to her house in the company of her daughter Smt. Sangeeta and told that they should keep her daughter (Smt. Sangeeta) at the parental house. Her daughter told that she was suffering from severe stomach pain as Gyan Bala and Ashok Kumar had beaten her by way of kick and fist blows. Thereupon, when she called PCR, Gyan Bala and Ashok Kumar left their house.
PW9 has not stated that only Gyan Bala had come to their house i.e. to parental house of Smt. Sangeeta. She has named both the accused as visitors and as such contradicted PW7. She wants the Court to believe that her daughter was also accompanying both the accused at that time. But in this regard she has again contradicted her husband, as, according to him, only 25 Gyan Bala had come and told that Smt. Sangeeta was lying unconscious at the bus stop, whereupon they reached the bus stop and found her lying unconscious at the bus stop. PW9 has nowhere stated that she and her husband accompanied any of the accused to the bus stop or found that their daughter was lying unconscious there.
Although according to PW9, both the accused told them to keep Smt. Sangeeta at the parental house, yet PW7 has not attributed any such any words to Gyan Bala. PW7 has also nowhere stated that their daughter told them at their house that Ashok Kumar and Gyan Bala had given her beatings by way of kick and fist blows.
According to PW9, she called PCR, but there is nothing on record to suggest that the mobile phone number available in DD Ex.PW5/A recorded at PS Vijay Vihar is that of PW9 or that she made any call from the given mobile phone number calling the PCR. Furthermore, there is no evidence to suggest that PCR staff reached the parental house of Smt. Sangeeta and removed her from there to Ambedkar Hospital. On the other hand, PW7 Sh. Jagdish Parsad Gupta, father of the deceased, has come up with the version that he and his wife removed Smt. Sangeeta from the bus stop to Ambedkar Hospital.
PW8 Sh. Dhanender Kumar, brother of the deceased has stated that he was informed by his mother that his sister Smt. Sangeeta had been given beatings. At that time, he was present at his shop situated in Mangolpuri. 26 Thereupon, he reached the temple near his house and found his sister lying near florist. On reaching there, he found his parents present there. He also observed mark of injury on the fact of Smt. Sangeeta. They informed the police. Police reached and removed Smt. Sangeeta to hospital. According to the witness, he and his parents also accompanied her to the hospital. So the version narrated by PW9 is not in consonance with the version narrated by PW7 - father of the deceased. PW7 did not state in his chief examination that his son Sh. Dhanender had also reached the bus stop and accompanied them to hospital. They are obviously in contradiction with each other regarding the place from where Smt. Sangeeta was removed to hospital.
PW8 Sh. Dhanender Kumar stated in his cross examination that his statement was recorded by the police twice i.e. on 06.07.2012 and 08.09.2012. He admitted that in his statement dt.06.07.2012, it stands recorded that his sister visited his house on 22.06.2012. According to the witness, he had not so stated before the police. To explain, he volunteered that his sister was left near a temple situated outside the street. However, in the next breath, he admitted that the fact that his sister was left near the temple situated outside the street does not find mention in any of his statements i.e.06.07.2012 and 08.09.2012.
As regards removal of his sister to Ambedkar Hospital, the witness initially stated in his cross examination that she was removed from near the 27 temple in his car, but in the next breath stated that she was removed to the hospital in a PCR gypsy. Had the witness been present at the time of removal of his sister to hospital, he would not have fumbled regarding the mode of conveyance and he would not have stated that his sister was removed to hospital in his car.
When we advert to statement of PW7 Sh. Jagdish Parsad, in this regard, in his cross examination, he stated that Smt. Sangeeta was removed from Rohini to Ambedkar Hospital in an autorickshaw. Therefore, PW7 & 8 are in contradiction with each other regarding the mode of conveyance used in removing Smt. Sangeeta to the hospital. This material contradiction also creates doubt in the version narrated by PW7 that he and his wife removed their daughter to Ambedkar Hospital.
Even otherwise, MLC Ex.PW2/A, as noticed above, does not contain the name of parents or either of them or brother of Smt. Sangeeta in the column meant for name of relative or friend who brought the victim to hospital. As per MLC, it is ASI Brij Lal of PCR who brought the injured lady to hospital on 22.06.2012 at about 1.50 p.m. In view of the material available on record, it appears that parents of Smt. Sangeeta did not accompany her at the time she was brought to Ambedkar Hospital. This fact also, as rightly submitted by learned defence counsel, creates doubt regarding their presence near Durga Temple in the 28 area of Rohini. It appears that they reached the hospital subsequently having come to know that Smt. Sangeeta had been brought there by the PCR staff.
Incident dt.24.06.2012
16. Case of prosecution is that on 24.06.2012, at about 9.15 a.m., Smt. Sangeeta was brought to RML Hospital by her husband. At that time, she was medicolegally examined by PW1 Dr. R.M. Rajneesh. As per MLC Ex.PW1/A and statement of PW1 the doctor witness there were three bruises and one contusion on the person of Smt. Sangeeta. Patient was referred to Surgical Emergency.
In his statement U/s 313 Cr.P.C., Ashok Kumar accused has admitted to have brought his wife to RML hospital and got her admitted there on 24.06.2012. At the time, she was brought to RML hospital, she was unconscious. Statement of Smt. Sangeeta could not be recorded during the period from 24.06.2012 till the morning of 03.07.2012, the reason being that she remained unconscious althrough her admission there.
According to PW25 SI Abhishek Kumar, he reached RML Hospital on receipt of information regarding admission of Smt. Sangeeta, on that day, by her husband. This information was received at PS Prasad Nagar, at 10.05 a.m. It is significant to note that after medicolegal examination of Smt. Sangeeta by PW1 Dr. R.M. Rajneesh, when she was referred to Surgical Emergency, PW25 SI Abhishek Kumar could not find Smt. Sangeeta at the 29 hospital. As per note at the left side top corner of MLC Ex.PW1/A, it stands recorded that patient did not reach casualty. It was so recorded at 10.30 a.m. where she was and for how much period she was not traceable at hospital? All this remains unexplained due to poor quality of investigation. According to SI Abhishek, he could not trace the given address i.e. H.No.16/1071, Khalsa Nagar, Delhi as available in MLC. According to SI, th is address is not complete. Ashok Kumar, accused has furnished his address in court as E Block, 16/1071, Tank Road, Khalsa Nagar, Karol Bagh, Delhi. It appears that because of incomplete address as available in the MLC, the SI could not trace the said address.
Fact remains that law was set into motion on 26.06.2012, when father of Smt. Sangeeta visited PS Parsad Nagar on that day and submitted complaint Ex.PW7/A. In Ex.PW7/B, the father mentioned that on reaching the hospital, he and his son had seen Smt. Sangeeta lying unconscious there and that she was in this state since 24.06.2012. But no statement of Smt. Sangeeta could be recorded as to the injuries observed on her person by PW1 Dr. R.M. Rajneesh on 24.06.2012.
Prosecution case was based on the statement of PW14 Smt. Urmil from the neighbourhood of matrimonial home of Smt. Sangeeta, but when examined in court, she has not supported the prosecution version. She was put leading questions by learned Addl. P.P., after seeking permission form the court. 30 When so examined, the witness denied that on 24.06.2012 she heard noise of quarrel emanating from the house of Ashok Kumar accused or that having climbed over the roof she saw Ashok giving beatings to his wife or that due to beatings, his wife fell down in varandah. The witness denied to have so stated before the police. She volunteered that she never climbed roof of her house. She also denied that she was deliberately not stating true facts.
Although, according to PW25 SI Abhishek Kumar, during investigation, he made inquiries from persons from that locality, but no such person - witness other than Urmil has been examined by the prosecution regarding occurrence dt.24.06.2012.
It is in the statement of PW7father of the deceased on 22.06.2012 after being free from Ambedkar Hospital they took Ms. Sangeeta to Crime against Women Cell, Sector 3, Rohini, Delhi where she submitted a complaint. Complaint is Ex PW7/A. On seeing this complaint, PW7 stated that the same is in the handwriting of his daughter and it bears signatures at point A. However, in his cross examination when attention of this witness was drawn to complaint Ex PW7/A so as to inquire from him if it is in the handwriting of his daughter. He replied that this complaint is in the handwriting of official of CAW Cell. In the next breath, he stated that it is in the handwriting of his son Sh. Dhanender Kumar Bansal.
31
PW8 Sh. Dhanender Kumar, brother of the deceased has also deposed about arrival of CAW Cell, Sector3, Rohini and that there they submitted a complaint Ex PW7/A to the police. Further according to the witness, complaint Ex PW7/A is in his handwriting but it bears signatures of his sister.
Learned defence counsel has referred to a sentence from point A to A in Ex PW7/A. This sentence is to the effect that "they say get out of the house". When PW7 was questioned about this sentence, he admitted that the same is in his handwriting.
PW8 also admitted in his crossexamination this fact that the sentence from portion A to A is in the handwriting of his father. Although PW8 Dhanender volunteered in his cross examination that he wrote in this complaint whatever was told to him by his sister.
PW7 did not state that wrote sentence from portion A to A as told by his daughter. In view of the above discussion, it is difficult to rely on the version narrated by PW7 and PW8 so far as contents of Ex PW7/A are concerned.
It is case of prosecution that after complaint Ex PW7/A was submitted at CAW Cell, amicable settlement was arrived at between the parties.
PW8brother of the deceased has stated that from CAW Cell they reached PS Prasad Nagar and submitted complaint whereupon called Ashok and his sister Gyan Bala and ultimately matter was amicably settled. As a result, Smt. Sangeeta was taken back to the matrimonial home. 32
PW9 Smt. Bimla Devi has also stated that a police official came from PS Karol Bagh and as such they accompanied him to PS Karol Bagh where matter was settled on arrival of Ashok and Gyan Bala and her daughter accompanied Ashok and Gyan Bala to the matrimonial home.
However, PW7 Jagdish Prasad, father of the deceased has given version different from the version given by his son and wife. According to him on 22.06.2012, her daughter represented that her clothes were lying at the matrimonial home. Say so she expressed the desire to return to the matrimonial home. Accordingly, she went to matrimonial home on the same day. PW7 has not stated regarding arrival of Ashok Kumar and Gyan Bala to CAW Cell or PS Karol Bagh or regarding of settlement arrived at between them or that as a result of the settlement his daughter returned to the matrimonial home in the company of her husband. PW7 can be said to have given a different version for the reason best known to him and the same further adversely affects the case of prosecution.
According to PW7father of the deceased on 25.06.2012, he contacted Ashok, his soninlaw on phone as for the last two days, he had no information from the matrimonial home of his daughter.
Ashok told him that Sangeeta was unconscious since 6 am and that they had taken her and left her at RML hospital. Thereupon, he and his wife reached RML hospital and found their daughter lying unconscious in the stairs 33 of the hospital. They removed her to the emergency. Doctors ultimately declared her dead.
Thereafter he submitted complaint Ex PW7/B at PS Prasad Nagar. The witness has identified his signatures on this complaint at point A. Ex PW7/B was submitted to the SHO PS Prasad Nagar on 26.06.2012. In this complaint it finds mention that on 25.06.2012 when Ashok (accused) was contacted on phone, he told that Smt. Sangeeta was facing more difficulty and that they had brought her to RML Hospital. It further stands recorded in that complaint, complainant (PW7) and his son had visited the hospital and sent Smt. Sangeeta there and further that she had been regained consciousness.
It does not stand recorded therein that when contacted on phone, his soninlaw Ashok (accused) told her that they had left Sangeeta at RML Hospital. Rather, therein it stands recorded that as told by Ashok, Sangeeta had been brought to RML hospital by him. Even MLC Ex PW1/A would reveal that Smt. Sangeeta was brought to this hospital on 24.06.2012 at 9.15 am by her husband, while she was unconscious. The fact that Smt. Sangeeta was brought to RML Hospital on 24.06.2012 also stands recorded in DD No. 22B (Ex PW3/A) recorded at PS Prasad Nagar on the information given by HC Surender on duty at the said hospital.
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It is pertinent to mention that when DD no. 22B Ex PW3/A came to be assigned to SI Abhishek Kumar on reaching RML Hospital, he collected MLC vide which doctor had observed injuries and that patient was in unconscious condition but the patient could not be traced out by him in the hospital. Accordingly, SI kept the DD entry pending. According to PW25 SI Abhishek Kumar, police came into action thereafter on 26.06.2012 when PW7father of Smt. Sangeeta submitted complaint Ex PW7/B. Had PW7 contacted Ashok, accused on 25.06.2012 on phone, and come to know that she had been brought to RML hospital, anyone of them must have visited the hospital on the same day i.e.25.06.212.
There is nothing to suggest in complaint Ex PW7/B or in the statement of parents and brother of Smt. Sangeeta if they visited RML Hospital on 25.06.2012.
In his crossexamination, PW7 stated that on 25.06.2012, Ashok accused had told him that he left his daughter in unconscious condition at the stairs of RML Hospital. This fact does not find mention in Ex PW7/B. Had he so told even then he must have reached the hospital to see if his daughter was actually lying on the stairs of the hospital.
Even otherwise, version given by PW7 regarding call made on 25.06.2012 is in contradiction with the statement of PW8 Sh. Dhanender Kumar and PW9 his wife.
35
According to PW8, Dhanender Kumar, after Sangeeta left for matrimonial home, as a result of amicable settlement for 34 days there was no information. On 25.06.2012, his mother inquired from Ashok accused on phone that and thereupon he told that Sangeeta was lying admitted at RML Hospital for the last two days. Thereupon, he accompanied by his parents RML Hospital and saw Sangeeta lying admitted there in ICU and her condition is serious.
PW9 Smt. Bimla, mother of the deceased has stated about a phone call made by her to Sangeeta on 23.06.2012 at that time her daughter told that Gyan Bala (accused) had come to matrimonial him and as such she would not be able to talk to her before evening. This fact does not find mention in the statement of PW7 and PW8 or in complaint Ex PW7/B by her husband to the police. Even if it be assumed that she was told by her daughter, she must have contacted her in the evening of 23.06.2012 but according to PW9 after 23.06.2014 she tried to contacted her daughter for 23 days but could not succeed. But it is in her statement that when her husband talked to Ashok accused, that Sangeeta was lying admitted at Wellington Hospital for the last 23 days. Thereupon, she, her husband and their son reached the hospital and found her lying admitted there in serious condition. But the fact remains that there is nothing in the statement of PW8 or PW9 that Ashok told that he had left Sangeeta at stairs of RML Hospital or that she was actually found lying 36 at stairs of the hospital. Rather MLC reveals that Smt. Sangeeta was brought to hospital by her husband on 24.06.2012 at 9.15 am and got medically examined.
Defence Plea
17. As noticed above, on 24.06.2012 at 9.15 am, it is Ashok Kumar accused who brought his wife Smt. Sangeeta to hospital and accused has admitted this fact.
According to PW1, the concerned doctor, as per history provided by the husband of Smt. Sangeeta, it was a case of suspected alleged history of assault and the patient having been found on the floor of the house at 4 am. When PW1 was crossexamined, he was not subjected to any cross examination regarding the history provided by the husband to the doctor. However, in statement under Section 313 CrPC, the accused has come up with the defence plea that on 24.06.2012 at about 7 am. He reached the second floor of his house and found his wife lying unconscious. With the assistance of his friend Roshan he removed her to the ground floor. Then he took her to RML Hospital and got her admitted there.
Accused has not stepped into the witness box as his own witness to state about the circumstances in which he found his wife lying unconscious and that too at 7 am. It remains unexplained as to how he told doctor that he found his wife lying unconscious at 4 am and as to how he has given this time 37 as 7 am while put forth his defence plea.
Accused has examined Sh. Roshan Lal DW1. He is a salesman and lives in the neighbourhood of Ashok Kumar accused. 15 houses intervened his house and house of Ashok accused. According to DW1, on 24.06.2012 at about 7/7.15 am he reached shop of Ashok Kumar to make purchases. Ashok Kumar asked him to wait as he was to go to urinate. Saying so he entered his house. After sometime, when he returned witness found him perplexed. Ashok Kumar asked him to accompany him. Accordingly, he accompanied him to the second floor of the house. There, he found wife of Ashok Kumar lying unconscious on the ground with fact downwards. Both of them picked her and brought to the ground floor. On the request of Ashok, he went and brought an auto rickshaw. Ashok Kumar made his wife to sit in the auto with his help and left for hospital.
As noticed above, accused has come up with the plea that he removed his wife from the second floor of his house to the ground floor with the assistance of his friend Roshan but while appearing as DW1 Roshan Lal stated that he was not on visiting terms with the accused. He explained that he used to visit his shop. It remains unexplained as to how Ashok described Roshan Lal as his friend.
In the given situation when Ashok Kumar removed his wife from his house to the hospital in injured condition and when she was unconscious, he 38 should have informed his inlaws on 24.06.2014 soon after that. But there is nothing on record to suggest that he informed his inlaws soon after that on 24.06.2012.
In his statement under Section 313 CrPC, he has pleaded to have informed his fatherinlaw on 24.06.2012 i.e. the day when he got her admitted at RML Hospital and that he should reach the hospital whereupon his mother inlaw reached the hospital.
In Ex PW7/B (the complaint submitted by father of the deceased to the SHO) it finds mention that for two days there was no news, but on 25.06.2012 during conversation with his soninlaw Ashok, he learnt that Sangeeta was feeling more uncomfortable and that she had been brought to RML hospital. In his crossexamination, he clearly admitted that on 24.06.2012 his soninlaw had told him that his daughter Sangeeta was lying admitted at RML Hospital. But in the next breath he explained that he had so told on 25.06.2012 when he contacted him on phone. It appears that memory of PW7 regarding the date did not help him.
According to PW9 Smt. Bimla Devi, motherinlaw, when her husband talked to Ashok, the reply was that their daughter Sangeeta was lying admitted at Wellington Hospital for the lats 23 days, as her condition was serious. She stated that in her crossexamination on 24.06.2012, Ashok accused did not tell that Sangeeta was lying admitted in the hospital. She 39 denied that her husband had not rang up Ashok accused.
Had the parents come to know from Ashok accused on 24.06.2012 that their daughter had again been brought to hospital, and she was lying unconscious, they must have rushed to the hospital on the same day i.e. 24.06.2012 herein they have not been informed.
From the trend of crossexamination, it appears to be a case of accused Ashok that his wife fell from a height on the second floor of his house where they were putting up on 24.06.2012. As per defence plea put forth in statement under Section 313 CrPC, she was found lying unconscious on the floor of the house at about 4 am. In the given situation, only husband and wife being at the house, it was for the Ashok accused to prove that actually she fell from height and her fall resulted in injuries on her person. But he has not brought on record any material to suggest that the wife fell from some height and the same resulted in injuries on her person.
In view of the above discussion, this Court finds that defence plea put forth by accused that he accompanied by DW1 Roshan Lal reached the second floor portion of the house and found his wife lying unconscious there, is not believable, as rightly argued by learned Addl. PP.
18. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of a person, the burden of proof that fact us upon him.
40
Herein, husband and wife being present at the house and the accused having himself told the doctor that she was found lying unconscious on the floor and that too at 4 am on 24.06.2012, it was for the accused to explain whatever he stated before the doctor. He has failed to explain that it was because of suspected assault by someone. Accused Ashok has also failed to explain as to what happened to his wife at 4am and in which manner she suffered eleven injuries observed by the doctor in postmortem examination.
In the given facts and circumstances, the only inference that can be drawn is that it is Ashok Kumar accused who assaulted his wife on 24.06.2012.
Then the question arises as to whether these injuries or anyone of them was sufficient to cause death or accused Ashok intended to cause death of his wife?
19. From the material available on record, this Court finds that prosecution has not been able to prove any motive. In absence of motive, it cannot be said that the accused intended to cause death of his wife.
As regards the second point if injuries or any one of them was sufficient to cause death of Smt. Sangeeta, Dr. Kulbhushan Prasad, who conducted autopsy on the dead body, has opined that renal failure consequent upon blunt force trauma to both the kidneys, which was sufficient to cause death in the 41 ordinary course of nature led to death of Sangeeta. But as is going to be discussed hereinafter, prosecution has failed to establish that any injury caused by Ashok accused was sufficient to cause death in the ordinary course of nature.
Medical evidence is available in the statement of PW1 Dr. R.M. Rajneesh, who medicolegally examined Smt. Sangeeta on 24.06.2012. As per statement of PW1 Dr. R.M. Rajneesh, he observed following injuries on the person of Smt. Sangeeta :
1. Bruise on left eye and nose (periorbital swelling and haematoma).
2. Bruise on upper lip.
3. Superficial abrasion on bilateral elbow.
According to the doctor, patient was referred to Surgical Emergency Room and advised Xray skull and Xray bilateral elbow.
As regards the history, the doctor stated in court that as told by the husband, it was the case of suspected history of assault and that she was found lying unconscious on the floor of the house at 4.00 a.m. The doctor could not tell if any of the aforesaid three injuries, observed on the person of Smt. Sangeeta could be the result of fall, the reason being that he was the Chief Medical Officer and only Neurosurgeon can reply this question.
As discussed above, while giving the history, the accused told the doctor that it was a case of suspected history of assault. It remains unexplained as to 42 how the accused expressed suspicion before the doctor that she had been assaulted by someone.
Smt. Sangeeta died on 03.07.2014 while she was admitted at hospital. PW21 Dr. Kulbhushan Prasad, Sr. Resident of Maulana Azad Medical College conducted autopsy on the dead body of Smt. Sangeeta on 03.07.2014 and prepared postmortem report Ex.PW21/A. Following injuries were observed by the doctor on the dead body of Smt. Sangeeta :
1. Bluish Black Contusion measuring 3 cm X 2.5 cm present over right temple, just above the Pinna of right ear, 1.5 cm outer to right eye brow.
2. Bluish Black Contusion measuring 3 cm x 3 cm present over left cheek, 2 cm below left eye brow, 2 cm outer to left ala of nose.
3. Bluish Black contusion measuring 3 cm x 2.5 cm present over inner aspect of upper lip in the midline.
4. Bluish Black contusion measuring 1 cm x 1 cm present over bridge of nose in the midline.
5. Bluish Black contusion measuring 5 cm x 4 cm present over front and outer aspect of left arm, 4 cm below tip of left shoulder, 11 cm from left elbow.
6. Brownish scaped abrasion of size 1 cm x 1 cm present over back of left elbow.
7. Bluish black contusion of size 6 cm x 4 cm present over front and outer aspect of left forearm, 2 cm from left wrist.
43
8. Bluish Black contusion of size 7 cm x 4 cm present over front of left thigh at the level of left anterior superior iliac spine.
9. Bluish Black contusion of size 5 cm x 4 cm present over inner aspect of left thigh, 4.5 cm below left anterior superior iliac spine, 18 cm above left knee.
10. Bluish Black contusion of size 2 cm x 1 cm present over front of right thigh, 5 cm below right anterior superior iliac spine, 14.5 cm from the right knee.
11. Bluish black contusion of size 2.5 cm x 2 cm present over left frontal region of skull, 4 cm from the midline.
On internal examination, the doctor observed following injuries: Lungs Both congested. On cut section fluid mixed with pus oozing out. Stomach - empty, Walls NAD Small Intestine and Large Intestine - Filled with yellowish fluid, gases and fecal matter. Multiple contusion present in mesentery of small intestine, cecum and ascending colon.
Kidneys Both the kidneys enlarged, multiple contusions present over surface of both kidneys. Effusion of blood present in capsule of both kidneys. On cut section, ill defined cortico medullary junction present, effusion was present in renal pelvis of both kidneys.
Skull Effusion of blood present over fronto perito region of skull. 44 In the opinion of the doctor, death occurred due to renal failure consequent upon blunt force trauma to both the kidneys which was sufficient to cause death in ordinary course of nature.
As further opined by the doctor, all injuries were antemortem in nature caused by blunt force trauma and the time that elapsed between death and postmortem examination was about 8 hours.
It is further in the statement of doctor that on 10.09.2012, on application Ex.PW6/A submitted by the IO to the Head of Department, he gave opinion Ex.PW21/B. This opinion reads as under : "Injuries are consistent with being about 10 - 12 days old in duration. As per postmortem report and clinical records, there is no finding to suggest that deceased consumed poison."
20. PW21 has admitted that kidney may get injured by damage to blood vessels on account of Aneurysm, Arterial blockage, Arteriovenous fistula, Renal vein thrombosis/ clotting, Angiomyolipoma, a noncancerous tumor, Autoimmune disorder, Bladder outlet obstruction, Cancer of the kidney, pelvic organs, (Ovaries or uterus in women) or colon. Diabetes, excess buildup of body waster products such as uric acid, Exposure of toxic substance such as lead, cleaning products, solvent, fuel or long term use of highdose pain medications, High blood pressure and other medical conditions that affects kidneys, inflammation caused by immune response to medications, infection or 45 other disorder, Ureteropelvic junction obstruction, Ureteral obstruction.
Medical record pertaining to her treatment during the said period has neither been produced nor got proved on record. Here again, the Investigating Officer failed to properly investigate the case by collecting the relevant medical record from the hospital regarding her treatment during the period from 24.06.2012 to 03.07.2014.
The death summary is Ex.PW25/D. It may be mentioned here that this death summary has not been got proved by examining the concerned doctors who prepared it or the doctors under whose treatment Smt. Sangeeta remained after her medicolegal examination vide MLC Ex.PW1/A and was referred to Surgical Emergency - 12 with advise for Xray skull and Xray bilateral elbow. In absence of complete medical record, it cannot be said that the patient was or was not given proper medical treatment during the period she remained admitted there.
PW21 has stated that both the kidney are protected by ribs and spleen. However, according to the doctor, the kidneys are so protected only on the back side and not on the front side. Doctor has admitted that in this case no injury was found on ribs and spleen.
21. Accused has examined in defence DW1 Dr. Rakesh Malhora. According to DW1, as per postmortem examination report, none of the injuries i.e. injuries no. 1 to 11 was on the kidney or on any part surrounding the kidney. 46
PW21 has admitted that Smt. Sangeeta was also suffering from lungs infection because of presence of pus in lungs. But according to this witness, there was no possibility of the given injury to the kidney on account of lungs infection or malfunctioning of any other internal organ. In his cross examination, he stated that in this case, pus was oozing out from both the lungs and same can be a cause for creation of infection in the body. However, he denied that due to pus oozing out of both the lungs, patient can suffer from renal sepsis or that it would lead to damage to kidney and other organs.
On the other hand, DW2 Dr. Rakesh Malhotra stated that in this case since pus was found oozing out of both the lungs, in his opinion, the pus might have spread and settled in both the kidneys and led to infection and bleeding. Although, DW2 could not say as to since when the patient was suffering from lungs infection, according to him from the factum of pus oozing out of both the lungs, it can be said that condition of patient was serious and it may led to respiratory failure and ultimately to death of the patient. He went on to state that in this case possibility of the patient having died due to pus in lungs infection cannot be ruled out.
According to PW21 Dr. Kulbhushan, in case of blunt force impact on the abdomen, death usually occurs in few hours of receipt of injury on account of loss of blood due to haemorragic shock. But another stage, he has opined that 47 a patient who suffers blunt force trauma to both the kidney may or may not survive.
The doctor has admitted in his cross examination that there is no possibility of contusion on the internal organs without there being an external injury mark corresponding thereto. But herein no external injury mark corresponding to the location of the kidney was observed by the doctor on the dead body, Doctor clearly admitted in his crossexamination that there was no external injury on the abdomen. He also did not observe any injury on layer of muscles of the patient.
According to PW21 injuries No.8, 9 & 10 are related to kidney. But having regard to the seat of these 3 injuries and as rightly submitted during arguments, it cannot be said that these are related to kidney.
22. In view of the medical evidence available on record and probable duration of injuries, this Court finds that what the prosecution has been able to establish is that in the morning of 24.06.2012, accused Ashok caused beating on the person of his wife and in that process she appears to have fallen to the ground resulting in more injuries on her person. But at the same time, there being no oral and cogent cogent and convincing medical evidence, it cannot said that the accused caused blunt force trauma to both the kidneys of Smt. Sangeeta. From the act of pushing, during beatings, it also cannot be said that 48 he had knowledge that his wife could suffer injuries to kidneys or that same would lead to her death.
Having regard to all the facts and circumstances and the material available on record, this Court holds that prosecution has not been able to bring home guilt to Ashok accused for the offence under Section 304 IPC.
So far as Gyan Bala accused is concerned, there is not even an iota of evidence on record that on 22.04.2012 she was found present at the matrimonial home of Smt. Sangeeta or that she participated or caused beatings to Smt. Sangeeta on 26.04.2012. Both the accused are, therefore, acquitted of the offence under Section 304 IPC.
Since this Court is of the opinion that Ashok accused caused hurt to Smt. Sangeeta by subjecting her to beatings, he is held guilty of the offence under Section 323 IPC.
Ashok accused is accordingly convicted of the offence under Section 323 IPC.
23. Be put up on 06.09.2014 to hear the convict Ashok on the point of sentence.
Announced in Open Court
on 05.09.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
49
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.39/12
FIR No.135/12
PS Prasad Nagar
State
Versus
Ashok Kumar ......Convict
ORDER ON SENTENCE
06.09.2014
Present: Sh. Rakesh Mehta, Addl. PP for State.
Convict with counsel Sh. Dinesh Chawla.
Learned Addl. PP submits that having regard to the facts and circumstances in which the convict caused injuries on the person of his wife and that ultimately she departed from this world, maximum sentence for the offence under Section 323 IPC be awarded in this case.
On the other hand, convict submits that he runs a grocery shop and that his father having left this world, he is the only earning member in the family to support his old aged ailing mother. Learned counsel submits that having regard to all this, lenient view be taken, when he has spent about four months during investigation. 50
The convict has been held guilty of the offence under Section 323 IPC for causing injuries on the person of his wife (since deceased). The injuries were caused in the early hours of the morning. As put forth by convict himself, his wife was feeble. But fact remains that while inflicting injuries, he did not bother to think even for a while about physique of his wife.
Having regard to all the facts and circumstances of the case, this Court does not deem it a fit case to sentence the convict for the period already undergone. He is sentenced to Rigorous Imprisonment for 9 months and to pay fine of Rs.50,000/ or in default of payment of fine to undergo Simple Imprisonment for two months for offence under Section 323 IPC.
The amount of fine, if deposited, be paid to the parents of Smt. Sangeeta, (since deceased) by way of compensation.
File be consigned to record room.
Announced in Open Court
on 06.09.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
51