Delhi District Court
State vs . Bhuri Begum on 24 June, 2023
IN THE COURT OF MS. SHIKHA CHAHAL
METROPOLITAN MAGISTRATE-11 (SOUTH EAST DISTRICT)
SAKET COURTS, NEW DELHI
State Vs. Bhuri Begum
FIR No. 62/2013
PS : Jaitpur
U/s : 23 J J Act
JUDGMENT
A. Case Identification Number & DLSE02-000809-2013
88007/2016
Cr. Case Number
B. Name of the Complainant SI Mahesh, Belt No. D-4064
C. Name of the accused & his parentage Bhuri Begum, w/o Sh. Jainuddin, R/o E-86, and address Jaitpur, Khadda Colony, New Delhi. D. Offence complained of 23 J J Act E. Date of commission of offence 20.02.2013 F. Date of Institution 22.06.2013 G. Offence Charged 23 J J Act H. Plea of accused Pleaded not guilty I. Order Reserved on 02.05.2023 J. Date of Pronouncement 24.06.2023 K. Final Order Convicted BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Briefly stated, facts in the present matter are that on 20.02.2013 at about 02:00 pm, at 18 Foot Road, Khadda Colony, Jaitpur Part-2, New Delhi, accused Bhuri Begum being the mother of minor child Naved was having actual charge State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.1 of 12 of master Naved and she assaulted master Naved, due to which he got physical suffering. Thereafter, the present FIR was registered against the accused for commission of an offence punishable under Section 23 J J Act.
2. After completion of investigation, charge-sheet was filed against the accused Bhuri Begum for commission of offences under Section 23 J J Act. After taking cognizance of offence and compliance of Section 207 Cr.P.C., charge was framed against accused to which she pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has mentioned seven witnesses in the list of prosecution witnesses namely; Master Naved as PW-1, SI Laxman Prasad as PW-2, ASI Krishan as PW-3, Lady Ct. Jaydei as PW-4, Dr. Abhineeth KP as PW-5, Neelam Baria as PW-6 and SI Mahesh as PW-7.
4. During prosecution evidence, accused vide statement under Section 294 Cr.P.C. admitted DD No. 28-A as Ex P-1 dated 20.02.2013 and statement under Section 164 Cr.P.C as Ex P-2 and did not press for formal proof of these documents and thus, examination of two witnesses i.e. DO ASI Ashok Kumar and Ld. MM Ms. Anu Aggarwal was dispensed with.
5. PW-1 Master Naved aged about 13 years deposed that on the day of the incident, his father was away for his work then an uncle used to came at his house and her mother Bhuri used to ask all of them (including his brother and him) to go outside and she used to bolt/close the door of the house. Thereafter, he along with his brother told this to their father and a verbal exchange took place between his mother and father. Again, when his father goes out for work then that uncle, namely, Mohabbat used to came to his house and his mother along with uncle gave beatings to all of them. One day his mother took him to somewhere and lodged a case against his father and made his elder brother Junaid ran from the house. His mother sent him to Anath Ashram. His mother State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.2 of 12 used to beat him daily. His statement was recorded in the Court as Ex.PW1/A.
6. PW-2 SI Laxman Prasad (then ASI) deposed that on 21.02.2013, SI Mahesh had handed over original rukka DD No.15A vide memo Ex PW2/A to him for registration of FIR. Thereafter, he handed over original rukka and copy of FIR Ex PW2/B to HC Balender to hand over the same to SI Mahesh Kumar for further investigation. He had also issued certificate u/s 65-B IAE Act vide memo Ex PW2/C.
7. PW-3 ASI Krishan (then HC) deposed that on 21.02.2013, he joined the investigation along with SI Mahesh. They came to Saket Court in search of child Naved as secret information was received by SI Mahesh regarding the same and they found that child Naved was present in front of court and the statement u/S 164 CrPC of child Naved was recorded after he was produced in the court. Medical examination of child Naved was got conducted in AIIMS and the MLC was received.
8. PW-4 Lady Ct. Jaydei deposed that on 20.04.2013, she joined the investigation along with IO SI Mahesh and went to the address, i.e. E-86, 18 foota road, gadda colony, where accused Bhuri Begum was arrested vide arrest memo Ex PW4/A and thereafter, accused was released on police bail as the offence was bailable. Witness correctly identified the accused in the court.
9. PW-5 Dr. Abhineeth KP, Senior Resident (Surgery) in AIIMS deposed that the MLC was prepared by Dr. Praphull and as per MLC, no injury is mentioned.
10. PW-6 Neelam Barla, Medical Record Technician in AIIMS deposed that the MLC was prepared by Dr. Praphull and that she can identify the signatures of Dr. Praphull as she had worked with him during official duties. The said MLC is Ex PW6/A. State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.3 of 12
11. PW-7 SI Mahesh deposed that on 20.02.2013, after receiving DD No.28-A regarding kidnapping of a child, he along with Ct. Sikander reached at the spot where they met accused Bhuri Begum, at that time she was the complainant who called the police. Thereafter, IO SI Mahesh asked her to give her statement/complaint but she refused to give the same. Thereafter, on 21.02.2013, he prepared rukka. Thereafter, he along with HC Krishan came to the court where master Naved along with his father was also present. On 20.04.2013, he along with lady Ct. Jaydey went to the house of Bhuri Begum where she was arrested vide arrest memo Ex PW4/A.
12. After the prosecution evidence was closed, the statement of accused under Section 313 Cr.P.C was recorded, wherein all incriminating evidences lead against the accused during the trial were put to him affording him an opportunity to give his explanation, if any. He denied the prosecution case in its entirety and stated that he was innocent and police has falsely implicated him in this case. Accused preferred to lead defence evidence. Consequently, the matter was posted for defence evidence.
13. DW-1 Bhuri Begum deposed that on 20.02.2013, his younger son Naved Alam gone to school for the date sheet of examination, but he had not come upto 12:00 noon. Thereafter, he reached to the school to see him but he could not found him. After that he called on 100 number Thereafter he had received information from PS Jaitpur at 11 pm that his father had taken him and one FIR was also registered in PS Jaitpur against her husband and her brother in law. That's why he had taken his son already living with his son. He had never beaten his child Naved Alam as he had nothing in his life except him.
14. DW-2 Mohd. Zaheer deposed that in the year 2013, he along with Bhuri Begum approached to shool. Thereafter, school official had informed to them that child Naved had come to school but thereafter he left the school after State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.4 of 12 school hour. Thereafter, he along with Bhuri Begum went to PS where he made a complaint regarding missing of child Naved.
15. Thereafter defence evidence closed and the matter fixed for final arguments. Final arguments addressed by the Ld. APP for State and Ld. Counsel for accused were heard and case file was perused.
16. Before appreciating evidence, I must mention the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts and it always rests on the prosecution. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
17. Let's recapitulate bare provision of section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000, which is as follows:-
"23. Punishment for cruelty to juvenile or child.-- Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both."
18. Reverting back to the evidence of present case, I find that fact in issue involved in present case, revolved around the fact, as to whether accused had or had not assaulted PW1 Master Naved, when accused was having control over said child on 20.02.2013, as a result of which said child suffered physically within the realms of Sec. 23, Juvenile Justice (Care & Protection of State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.5 of 12 Children) Act, 2000. Therefore, testimony of PW1 Master Naved, formed the bedrock of this litigation.
19. PW1 Master Naved was a child witness. He was aged 13 years on 02.06.2017 when he was examined in the court by prosecution. His statement u/sec. 164 CrPC Ex.PW1/A was recorded on 21.02.2013 during investigation. It means that his initial version was brought on record when he was about 09 years of age. In his statement u/sec. 164 CrPC, which was recorded by Ld. MM, after concluding that he was making that statement with free state of mind and voluntarily, I find that this witness categorically stated that he was beaten by accused physically and was threatened to the extent that he would be left with his father. It was also noted that accused had beaten him with wires. Based on said sufferings, this witness had gone with his brother to the residence of his father.
20. The said statement u/sec. 164 CrPC clearly spelt out the reason based on which PW1 had left the company of his mother. That statement reflected that PW1 had not left the company of his mother, just like that. Since he was beaten and threatened by accused, so he had left her company.
21. PW1 admitted in his testimony that he had given said statement in the court, when he deposed on 02.06.2017. That was an incriminating fact against accused in which accused failed to make any inroads. There was no suggestion, to the effect that said statement was given by PW1, after being tutored by his father or anybody else. As such, I have no reason to doubt the veracity of said statement Ex.PW1/A.
22. Moving further, PW1 was minor child when he deposed in the court. Testimony of such child witness can be relied if it is convincing and reliable. Reliance in this regard is placed upon case law titled as Suresh Vs. State of UP, AIR 1981 State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.6 of 12 SC 1122. Further, testimonies of such like witnesses, should be scrutinized carefully and court should seek some form of corroboration because corroboration is more of a norm of practical judgment than of law. Testimony of child witness is very likely to be taught and should be accepted only after careful consideration. The court must carefully consider whether the child witness is under any teaching influence but such evidence should not be dismissed on the ground that he is likely to be taught because of his soft age. Reliance in this regard is placed upon case law titled as Nirmal Kumar Vs. State of UP, 1992.
23. So, in the wake of above law, it is clear that testimony of PW1, has to be appreciated, from the perspective of whether it was given by him due to tutoring by somebody or not? Independent corroboration of his testimony, as a matter of prudence, should be done.
24. Based on above understanding of law, I am proceeding further. PW1 admittedly was son of accused. In his cross-examination, he deposed that his father and mother were living separately. He also deposed that there were many cases between his father and mother. Those facts, therefore, were admitted facts. If that is so, then reason of PW1 leaving accused on 20.02.2013, based on beatings being given by accused, was not improbable. Accused could have rebutted said probability by asking questions regarding the safe environment, she was providing to him, prior to 20.02.2013. PW1 could have been asked about his safety in the company of accused. Questions regarding outings of PW1 with accused and happy moments spent by PW1 in the company of accused, could have also been asked. PW1 could have been given suggestions regarding accused being the victim in litigation between her and father of PW1 by Ld. Counsel for accused. None of the said aspects were touched when PW1 was cross-examined. In other words, no fact was brought on record based on State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.7 of 12 which, I could have appreciated that PW1 had deposed against accused under the influence of his father or somebody else. There was nothing in his cross- examination, based on which I could have concluded that he was living peacefully with accused prior to or at the time when he left the company of accused, on 20.02.2013.
25. PW1 was examined in chamber by the court. General questions were asked by the court, to make him feel comfortable. He answered those questions correctly. That procedure only indicated that he was deposing voluntarily without undue influence from anybody.
26. In his examination-in-chief, besides deposing the fact that he was beaten by his mother he deposed certain other facts. He deposed in this regard, that some uncle namely Mohabbat and other used to come in the absence of his father in his house. At that time, accused used to ask him and his siblings, move out of the house. Thereafter, he used to hear bad noises. That deposition indicated that he was talking about possibility of extra marital affair of accused. He categorically deposed that he and his brothers had told that fact to his father and that is why, verbal exchange took place between his father and accused. So, by deposing in said manner, he explained the reason of conflict between his father and accused. That deposition was not countered by accused, in any manner. There was no suggestion to the effect that said cause of discord between accused and father of PW1 was false for some specific reason. Infact, specific suggestions denying those facts were not put to this witness. A general suggestion regarding him deposing falsely against accused, was put, which he denied. So, his cross-examination by accused did not help the cause of accused.
27. PW1 admitted in his testimony that he was beaten by accused and that he had told his brother Junaid to accompany him for going to his father as accused used to beat him. So, he left the house of accused after changing clothes. Said State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.8 of 12 facts were admitted by PW1 when he was cross-examined by Ld. APP for the state. That cross-examination by Ld. APP for the state did not make his testimony doubtful. Reason being, that his testimony was recorded in the court on 02.06.2017 whereas his statement u/sec. 164 CrPC Ex.PW1/A was recorded on 21.02.2013. There was evidentially gap of more than 04 years between said statements. Possibility of his memory fading away cannot be ruled out. Therefore, said cross-examination by Ld. APP for the state did not make his testimony doubtful.
28. In the wake of above mentioned appreciation, I find that testimony of PW1 was trustworthy and reliable. There was no possibility of him being tutored by anybody. Absence of injuries in his MLC Ex.PW6/A, did not make his testimony doubtful as this witness had talked about "beatings". It was not his case that he had received beatings on the day when he had left the company of accused. It was not his case that he was given beatings with some sharp edged weapon, immediately prior to the day he had left the company of accused. So, "beatings" referred by this witness indicated that injuries sustained by him were superficial in nature. Ordinarily, such injuries do not stay for long. Therefore, absence of injuries in MLC did not help the cause of accused. Even otherwise, testimony of PW1 in this case, as such did not require independent corroboration. So, testimony of PW1 stood the acid test of cross-examination. I believed his testimony to be trustworthy.
29. This brings me to the testimonies of police witnesses. PW2- SI Laxmi Prasad, was a formal witness who was instrumental in registration of FIR in question. He deposed about the manner in which FIR in question was registered. He identified original rukka and FIR i.e. PW2/A and Ex,PW2/B respectively in his testimony. As such, there was nothing improbable or illegal about said deposition. He admitted that white fluid was used on the certificate Ex.PW2/C State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.9 of 12 at the place of "section". That use of fluid by itself did not make the whole prosecution story, doubtful. It was a correction, done in ordinary course of official duty which is not relevant, for discarding his testimony.
30. PW3- ASI Krishan in his testimony deposed about the manner in which PW1 was recovered, on the basis of secret information, on 21.02.2013. He was not cross-examined by accused. There was nothing on record to suggest that he was deposing falsely.
31. PW4- Lady Jaydei was witness to the arrest memo Ex.PW4/A vide which accused was arrested. Again, she was not cross-examined by accused. There was nothing on record to suggest that he was deposing falsely.
32. PW7- SI Mahesh was the IO in this case. He deposed about the manner in which he had conducted investigation, as mentioned in charge-sheet. Same is not repeated here for the sake of brevity. He refuted the suggestions, based on false implication of accused and false preparation of documents, during investigation. As such, there was nothing brought on record by cross-examining him by accused, which could have suggested that he had implicated accused falsely. Even otherwise, he identified the documents he had prepared during investigation, which are not challenged by accused.
33. Therefore, testimonies of police witnesses are found by me to be trustworthy and reliable.
34. PW5- Dr. Abhineeth and PW6- Ms. Neelam Verma, were witnesses to the MLC of PW1. They identified the said MLC. They were not cross-examined by accused. There was nothing on record to suggest that they were deposing falsely.
35. So, prosecution witnesses were trustworthy and reliable.
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36. Accused on the other hand, had examined herself as DW1. She did not depose about the details of circumstances in which PW1 was residing with her. She only deposed that she had never beaten PW1. As per her, PW1 had given statement against her under the influence of her husband Zainuddin. It was not suggested to PW1 that he was deposing against accused under the influence of Zainuddin. Therefore, her said defence, was not trustworthy. Even otherwise, she admitted that she had registered FIR against her husband in 2011, in which her husband had gone in custody. Said fact only indicated that her relations with her husband were not cordial. Beyond that, it cannot be concluded that PW1 had deposed under the influence of Zainuddin. Infact, accused did not give any explanation or details regarding the reason as to how PW1 could have been influenced by Zainuddin. For a child, ordinarily both parents stand on equal footing, unless circumstances stand otherwise. In this case, the only circumstance which stood otherwise was that accused used to beat and threaten PW1, which prompted PW1 to leave her company and go to his father Zainuddin. So, testimony of DW1 did not put up a believable explanation of her being falsely implicated in this case. Accordingly, I disbelieved her testimony.
37. DW2- Mohd. Jahid, being a neighbour to accused deposed that accused used to keep PW1 carefully and in healthy atmosphere. As per him, accused was never cruel or had ever beaten PW1. Those facts, were such that only a person living with accused and PW1, could have known. Being a neighour, DW2 could have deposed about the behaviour of accused, which he had seen, outside the house of accused. It was never the case of DW2 that he had occasion to visit the house of accused for some substantial time during which he had noticed good behaviour of accused towards PW1. So, testimony of DW2 was that of an outsider. Allegations leveled by PW1 against accused were such that a person living with PW1 and accused, would have been in a better position to unravel State Vs. Bhuri Begum FIR No. : 62/2013 PS : Jaitpur Page no.11 of 12 the true relation of PW1 and accused. So, DW2 was not a trustworthy witness, who could have helped the cause of accused.
38. Even otherwise, in his cross-examination, DW2 had no knowledge about siblings of husband of accused. He had no knowledge about whether Mohabbat used to come to the house of accused. Those were relevant facts, which this witness could have answered, in order to show that he had access to the facts regarding proper behaviour of accused towards PW1. So, he lacked knowledge regarding relevant facts. I discarded his testimony, accordingly.
39. In light of the above, this court is of the considered view that prosecution has successfully established its case against the accused to prove the guilt of accused beyond reasonable doubt. Hence, the accused Bhuri Begum stands convicted of the offence under Section 23 J.J.Act, she has been charged with.
Announced in the Open Court on 24.06.2023 (SHIKHA CHAHAL) MM-11/SED/New Delhi It is certified that this Judgment contains 12 pages and each page bears my signatures.
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