Delhi District Court
State vs . on 20 August, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIOS JUDGE (NORTH):DELHI.
S.C. No. 16/10
ID No.02401 R0076242006
State
Vs.
(i)Madhu
Wife of Sh. Subhash
R/o H. No. 2513, Katra Banwari Lal
Gali Lajpat Rai Behind Kali Masjid
Turkman Gate,
Delhi.
(ii)Sunny
Son of Sh. Subhash
R/o H. No. 2513, Katra Banwari Lal
Gali Lajpat Rai Behind Kali Masjid
Turkman Gate,
Delhi.
FIR No.:126/05
PS : Chandni Mahal
U/S 341/323/313 read with Section 34 IPC
Date of Institution:19.11.05
Date of reserving judgment:4.8.10
Date of pronouncement:20.8.10
JUDGMENT
1 Brief facts of the case are that on 08.04.05 at about 6.30 PM, when the complainant Smt. Manju was coming back to her house after taking her table fan, which was kept in the house of accused Madhu, she was restrained on the way by accused Madhu and her son Sunny. After restraining her, accused Madhu gave legs and fists blows on the abdomen of complainant, who was having three & half months pregnancy. On account of that beating, she felt pain and went to the hospital for treatment.
SC No. 16/10 1/8 2 2 Charge was framed against the accused Madhu and Sunny by Ld. Predecessor on 07.07.08 in respect of offences U/S 341/323/313 read with Section 34 IPC with the allegation that on 08.04.05 at about 6.30 PM in front of house No. 2513, Katra Banwari Lal, Sita Ram Bazar, Chandni Mahal, they in furtherance of their common intention restrained Smt. Manju and caused hurt to her due to which she suffered the miscarriage. Both accused pleaded not guilty to the said charge and claimed trial.
3 To prove its case prosecution has examined eight witnesses. They are Ms. Manju (PW1), Pradeep(PW2), Dr. Leena(PW3), Dr. S.K. Satrawal(PW4), Mr. J. N. Sharma(PW5), HC Harender Prakash(PW6), ASI (Retd)Khajan Singh (PW7) and ASI Iqbal Ahmed (PW8).
4 Statement of both accused had been recorded U/S 313 Cr.P.C wherein they have denied the allegations of prosecution. They have submitted that they are innocent. They have been falsely implicated by the complainant and her husband on account of personal enmity. Both accused did not examine any witness in their defence.
5 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State. I have perused the case file.
6 After going through the testimonies of witnesses examined by the prosecution, I am of the considered view that PW1, who is the star witness of the case, being the injured, is not trust worthy and reliable . There is material contradictions in her testimony on material points. Further, her testimony is not corroborated with the testimonies of other PWs on material points. 7 From the testimony of PWs it is not clear as to where complainant Manju was restrained by the accused. In her testimony PW1 has deposed that on 08.04.05, the ceiling fan of her house was not in working condition. She went to the house of accused Madhu to take her table fan. She SC No. 16/10 2/8 3 (PW1) was coming back to her house after taking her table fan from the house of accused Madhu. When she reached at the main gate of her house, accused Madhu came from behind alongwith her son Sunny. Accused Sunny restrained her and Madhu started beating her with legs and fists on her abdomen. In other words, PW1 was restrained by the accused persons at the main gate of her house, but in her complaint Ex.PW1/A she has submitted that when she was on the way to her house, after taking her table fan she was restrained by the accused. In other words, as per complaint Ex.PW1/A she was restrained by the accused on the way to her house and not at the main gate of her house . 8 From the testimony of PW1 it is not clear as to with whom complainant Manju went to the doctor after receiving the injury in the hands of accused. In examinationinchief PW1 has deposed that after the beatings by accused, she started bleeding and severe pain was there in her abdomen. She immediately went at a private clinic and took the medicines on the advice of doctor and came to her house. In other words, she alone went to the doctor for treatment from a private clinic. But in crossexamination by ld. counsel for accused, she(PW1) has deposed that she had gone to the private clinic by a auto rickshaw with her husband. She has further deposed that private clinic, where she had gone immediately after the incident was nearby, where she was taken by her neighbours. One of them was Triveni, who is related to her.
9 From the testimony of PW1 it is not clear as to whether she started bleeding after receiving the fists and leg injuries from accused Madhu. In her testimony, PW1 has deposed that due to the beatings she started bleeding and suffered pain in her abdomen. But in her complaint Ex.PW1/A no such facts have been recorded. The attention of the PW1 was also drawn to her statement Ex.PW1/A, wherein such fact has not been so SC No. 16/10 3/8 4 recorded.
10 From the testimony of PWs, it is not clear as to where the ultra sound of complainant was done, i.e Whether it was a private shop or some hospital. PW1 has deposed that on the next day of 8.4.05, pain started in her abdomen. She alongwith her husband Pradeep went to Irwin hospital. She was medically examined by the doctor and on the advice of the doctor, ultra sound was done at a private shop. But PW7 ASI Khazan Singh, who is the initial IO of this case has deposed that he took Manju to JPN hospital, where her ultra sound was got done and she was admitted for the purpose of abortion. 11 From the testimonies of PWs it is not clear as to on which date complainant was aborted by the doctor. PW1 has deposed that on 10.4.05 she was not feeling well. She alongwith her husband visited the hospital, where doctor aborted her child. But PW2 Pradeep has deposed that after two days of incident, his wife (PW1) felt severe pain. He took her to Irwin hospital. His wife was admitted in the hospital and was advised ultra sound. Doctor told him that the baby had died in the womb, so the child would have to be aborted. On the next date, the child was aborted by the doctor. In other words, the child was aborted by the doctor on the next day after two days of the incident i.e on 11.4.05.
12 From the testimonies of PWs it is not clear as to where the statement of complainant Ex.PW1/A was recorded. PW1 has deposed that her statement Ex.PW1/A was recorded by the police in the hospital, which bears her signature at point A. But PW7 has deposed that on 10.4.05 complainant Manju and her husband Pradeep came to the police post. The complainant Ms. Madhu got recorded her statement, which is Ex.PW1/A. In other words, the statement Ex.PW1/A was recorded in the Police Post and not in hospital.
SC No. 16/10 4/8 5 13 From the testimonies of PWs it is not clear as to what kind of beatings were given by the accused Madhu to the complainant Manju. PW1 has deposed that Madhu gave beating to her with legs and fists on her abdomen. But PW2 Pradeep, who is the husband of complainant Manju, has deposed that his wife (Manju)disclosed that she was beaten by Madhu with fists. 14 From the testimonies of PWs, it is not clear as to where from complainant took the treatment on the day of incident. PW1 Manju has submitted that due to the beatings, severe pain started in her abdomen and she started bleeding. She immediately, went to a private clinic and took the medicine on the advice of the doctor and returned back at her house. But, PW2 Pardeep, who is the husband of PW1, has deposed that on 08.04.05 he came to know that his wife had gone to private hospital for taking medicines. He was going towards the hospital and saw that his wife was coming back. He met her on the way and took her to the Irwin hospital. In the Irwin hospital, his wife was medically examined by the doctor, who advised some medicines. His wife was having pregnancy of three & half months at that time. After giving the medicines, the doctor, in the hospital, discharged her. In other words, as per the testimony of PW2 his wife Manju took the treatment from Irwin hospital on the day of incident and not from a private clinic.
15 From the testimony of PW1 it is not clear as to when the alleged incident took place, i.e Whether it was on 8.4.05 or 09.4.05. A perusal of statement Ex.PW1/A shows that the complainant gave the statement to the police on 10.4.05. But in this complaint, she has submitted that yesterday dated 8.4.05 at about 6.30 PM when she was coming back with her table fan, which was kept in the house of accused Madhu, she was restrained by accused and they gave beatings to her. It means that the complaint should have been recorded on 09.4.05 as she has narrated the incident of previous day. If a SC No. 16/10 5/8 6 person lodges a complaint on 10.4.05 and talks about the incident of previous date, the date, which certainly comes before 10.4.05, should to be 09.4.05 and not 8.4.05. A perusal of Ex.PW1/A clearly shows that there is over writing on the date at the bottom of complaint and on the Rukka Ex.PW7/A where over writing is also appearing on the date of Ravangi Tehrir 16 The next and most crucial question that arises for consideration is whether complainant Manju actually suffered miscarriage/abortion on account of the beatings, allegedly given by accused Madhu alongwith her son. To prove this fact, prosecution has examined Dr. Leena as PW3. She (PW3) has deposed that as per available record, the case file of patient Manju was referred to her by the Head of the Department, Gyane & OBST for seeking opinion as Dr. A. Tempe was on leave at that time. After going through the records in the case and as per ultra sound reported prepared on 9.4.05 the age of fetus was less than 12 weeks (first trimester). She also examined the report of ultra sound of patient, which was prepared on 9.4.05. According to the ultrasound report, it was eight weeks missed abortion. Her report in this regard is Ex.PW3/A. 17 In crossexamination by ld. counsel for accused PW3 has deposed that first trimester abortions are usually due to 'germ plasm defect'. In other words, the abortions happen due to inherent defect. She has further deposed that as per the opinion of the radiologist, in ultrasound report, dated 09.04.05 the case in question was of missed abortion, which means that the fetus had been dead and remained inside for few weeks. As per the ultrasound report dated 09.04.05, the age of fetus was eight weeks and it was already dead. When she had seen the record, the gestation age of the fetus was eleven weeks and two days according to patient's last menstrual period (LMP) which was on 20.01.05. Her opinion SC No. 16/10 6/8 7 Ex.PW3/A is based on record available.
18 After going through the testimony of PW3, it becomes clear that as per the ultrasound conducted on 09.04.05 the complainant Manju had already suffered eight weeks missed abortion. In other words, the child in the womb of the complainant had already died when it was eight weeks old. As per testimony of PW3 the child, which is aborted in the first trimester, is due to 'germ plasm defect', which is an inherent defect. In the present case, PW3 has categorically deposed that case in question was of missed abortion, which means that fetus had already died and remained inside the womb for few weeks.
19 It is worth noting that, in the present case, the alleged incident took place on 08.4.05 and her ultrasound has been conducted on 09.4.05. As per the ultrasound report the age of the fetus was eight weeks and it was already dead. PW3 Dr. Leena has categorically deposed that on 09.04.05. age of fetus was less than 12 weeks (first trimester). In view of above facts, the testimony of PW1 that she was having three and half months pregnancy on the day of incident cannot be believed in view of the testimony of PW3. Since the case of PW1 was of a missed abortion, which she suffered on account of inherent defect, it cannot be said that PW1 suffered abortion/miscarriage due to the legs and fists beating by the accused. 20 It is significant to note that in the present case, the prosecution has not been able to prove the medical treatment record allegedly taken by the complainant Manju. PW1 Manju has deposed that her statement was recorded by the police in hospital, which is Ex.PW1/A. She handed over the treatment papers to the police, which were prepared by the doctor in the hospital. PW7 ASI Khazan Singh has also deposed that complainant Manju handed over to him nine documents pertaining to her admission, treatment and SC No. 16/10 7/8 8 discharge from the LNJP hospital. He has placed them on record. The same are Ex.PW7/C1 to C9. He procured the MLC and placed the same on record. However, a perusal of documents Ex.PW7/C1 to C9 shows that the documents do not pertain to the treatment of complainant Manju and the documents Ex.PW7/C1 to C9 pertain to the treatment of one Nasir son of Afzar Khan, R/o Patri Darya Ganj, Delhi. No explanation has been furnished by the prosecution as to why the medical treatment documents of Manju which were given by her to the IO have not been placed on record and as to why the documents pertaining to the treatment of one Nasir have been placed on record by the prosecution.
21 After going through the testimony of PW1, I am of the considered view that testimony of PW1 does not inspire confidence. It is full of doubts. Moreover, her testimony is not corroborated with the testimonies of other PWs on material points. All these contradictions and material infirmities in the prosecution case caste a doubt about the truth in the prosecution story. All these contradictions in the testimonies of PWs, are major ones and cannot be ignored. They go to the root of the prosecution case and are thus fatal. Consequently, prosecution has miserably failed to prove its case beyond reasonable doubt against the accused. Accordingly, both accused Manju and Sunny are acquitted of the offences, they were charged with. Both accused are on bail in this case. Their personal bonds and surety bonds are cancelled. Their sureties are discharged.
File be consigned to Record Room.
Announced in open court today on (Smt. Bimla Kumari)
20.08.10 Addl. Sessions Judge (North):Delhi
SC No. 16/10 8/8