Delhi District Court
Prosecution vs Smt. Usha W/O Sh. Naresh Kumar on 20 August, 2019
1
IN THE COURT OF SH. GURDEEP SINGH,
ADDITIONAL SESSIONS JUDGE-1 (POCSO), SHAHDARA,
DISTRICT, KARKARDOOMA COURTS, DELHI.
CNR No. : DLSH01-001016-2014
Sessions Case No : 668/16
FIR No. : 103/14
Under Section : 302/109 IPC & 23 JJ Act
Police Station : M. S. Park
In the matter of :
STATE
.......... Prosecution
VERSUS
1. Smt. Usha w/o Sh. Naresh Kumar
H. No. 204, Gali No.1, Chanderlok
Shahdara, Delhi.
2. Deepak Panchal s/o Sh. Naresh Kumar
H. No. 204, Gali No.1, Chanderlok
Shahdara, Delhi.
.......... Accused
Date of Institution : 24.05.2014
Date of reserving judgment : 20.08.2019
Date of pronouncement : 20.08.2019
JUDGMENT
1) Accused Smt. Usha and her son Deepak Panchal were sent up for trial by the police of PS M. S. Park for offences punishable under S. 302/109 of Indian Penal Code, 1860 (herein after referred to as "IPC" in short) and under S. 23 Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as JJ Act).
FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 1 of 392
2) In brief the prosecution case is that on 19.02.2014, DD No. 36B was recorded on the information received from Sh. Naresh Kumar, who came to the police station and gave in writing regarding death of his grand daughter, aged about 2 years mentioning therein that he received telephonic call at about 2:00 p.m. from his wife Usha that suddenly victim child felt giddiness and she fell (vpkud cPph dks pDdj vk;k vkSj fxj xbZ). On his asking, his wife took the victim child to emergency ward of GTB Hospital where doctor stated 'now there is nothing in the child and asked her to take victim child back and when she reached at home, she found the victim child dead. The said DD was marked to SI Hukum Singh for investigation. On this, SI Hukum Singh alongwith staff reached at the spot i.e. H. No.204, Gali No.1, Chanderlok Colony, Shahdara, Delhi where he found dead body of victim child wrapped in brown colour shawl. On inspection of dead body, victim child was found having many injuries' mark over her body but there was no fresh visible injury present. On enquiry, accused Usha, grand mother of the victim child, had stated that at about 1:30-2:00 p.m. when she was making tea in the kitchen, all of sudden, she heard noise of crying of victim child and when she went, she found victim on the floor in unconscious state. She immediately informed her husband who asked her to take victim to hospital immediately and FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 2 of 39 3 accordingly she took victim to hospital where doctor has declared her brought dead. She also disclosed that at the time of incident, there was no body present in the house except her and victim child. IO inspected the spot, however, he did not find any mark of blood or liquid substance. He also did not find any suspicious articles.
3) On enquiry, IO came to know that mother of deceased has got registered a case viz. FIR No.323/13, U/s 498A/406/34 IPC & 4 D. P. Act against her husband (father of deceased) in which a settlement has arrived in court on 19.12.2013 and according to which, father of deceased Deepak had to pay Rs.3,25,000/- to his wife and custody of the child was handed over to him from his wife. The information regarding death of victim child was given to her mother and grand father (nana), who had raised suspicion that victim was killed by in-laws of Rajni (mother of victim child). IO initiated the inquest proceeding u/s 174 Cr.PC and got the dead body preserved and got the postmortem conducted on the dead body on the next day. After postmortem, dead body was handed over to father of deceased for cremation, which was not objected to by mother of deceased child. On 24.02.2014, postmortem report was received wherein doctor concerned has noticed 24 ante-mortem external injuries, stomach empty and cause of death was 'shock as a result of ante-mortem injury to head FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 3 of 39 4 produced by blunt force impact'. Therefore on the basis of postmortem report, statement of mother and grand father of victim, FIR u/s 302 IPC and 23 JJ Act was got registered by IO. After registration of the case, further investigation was entrusted to Inspector Jai Bhagwan, SHO. Documents were obtained from previous IO. Site plan without scale was prepared at the instance of previous IO. During investigation it was revealed that victim child was being tortured by grand mother Usha who used to beat her and not give her proper food. On 25.02.2014, accused Usha was arrested. At the instance of accused Usha, one immersion road and stick were recovered from her house and were seized. Father of victim child was also arrested. Statement of Rajni, mother of victim child and Sh. Rakesh, grand father (nana) of victim child was recorded u/s 161 Cr.PC. The exhibits were got deposited with Forensic Medicine Department, GTB Hospital for subsequent opinion and were obtained on 04.04.2014. Scaled site plan was also prepared. Certified copy of order dated 19.12.2013 in respect of bail application in case FIR No.323/13 u/s 498A/406/34 IPC & 4 D. P. Act was obtained and annexed with chargesheet. After completion of investigation, chargesheet was filed.
4) After supplying necessary copies to the accused, My Ld. Predecessor vide order dated 05.11.2014 charged both FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 4 of 39 5 accused for offence punishable u/s 120B IPC, 302/120B IPC and 23 JJA Act, to which they pleaded not guilty and claimed trial.
5) The prosecution in support of its case, examined as many as 13 witnesses. The prosecution examined following material witnesses:-
i. PW-1 Smt. Rajni is mother of the deceased child.
ii. PW-7 Sh. Rakesh Kumar is grand father (nana) of the deceased child. He proved identification memo of dead body as Ex.PW-7/A and handing over memo of dead body to father of deceased child as Ex.PW-7/B.
6) The prosecution also examined following formal witnesses:-
i. PW-02 HC Rakesh Tyagi is duty officer who registered formal FIR of this case and proved computerised copy of FIR as Ex.PW-2/A and his endorsement on the rukka as Ex.PW-2/B. He also proved DD No.20A as Ex.PW-2/C. ii. PW-3 Dr. Sunil Sagar, Physician in whose clinic accused has taken the child at about 11:30 a.m. on 19.2.2014 and advised her to take the child to government hospital as child was not breathing and her pupil were dilated.
iii. PW-8 Sh. Bhagwan Singh, Ahlmad proved certified FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 5 of 39 6 copy of order dated 19.12.2013 passed in case FIR No. 323/13, U/s 498A/406/34 IPC & 4 D. P. Act.
iv. PW-9 HC Sonu Kaushik is draftsman who proved scaled site plan of the spot as Ex.PW-9/A. v. PW-10 HC Ram Prakash is witness who deposited the 2 sealed exhibits with GTB Hospital for subsequent opinion and proved relevant page of register no.19 as Ex.PW-10/A. vi. PW-10 Dr. Priyal Jain (it should be given PW number as PW-11) is doctor who conducted postmortem upon dead body of deceased child and proved detailed postmortem report as Ex.PW-10/A and detailed subsequent opinion as Ex.PW-10/B.
7) The prosecution also examined following witnesses of investigation :-
i. PW-5 L/Ct. Babita is witness regarding confession of accused Usha and her arrest and seizure of immersion rod and danda. She proved arrest memo Ex.PW-5/A, her personal search memo Ex.PW-5/A-1, disclosure statement Ex.PW-5/A-2, seizure memo of danda as Ex.PW-5/B and seizure memo of immersion rod as Ex.PW-5/C. She also identified the danda and immersion rod as Ex.PW-5/Article-1 and FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 6 of 39 7 Ex.PW-5/Article-2 respectively.
ii. PW-6 Ct. Joginder is witness who alongwith IO SI Hukum Singh and Ct. Vijay reached at the spot on receipt of information.
iii. PW-11 SI Hukam Singh is first investigating officer. In addition to other documents, he proved DD No.36AB as Ex.PW-11/A and information of the death of deceased child as Ex.PW-11/B, statement of accused Usha Ex.PW-11/C, statement of Naresh Ex.PW-11/C-1 and brother of Deepak namely Ex.PW-11/C-2 and Vinod Kumar as Ex.PW-11/C-2, photographs of deceased child as Ex.PW-11/D (20 photographs - 4 photographs on each sheet), application for preserving the dead body in mortuary as Ex.PW-11/D-1, statement of Rajni as Ex.PW-11/E, statement of Rakesh as Ex.PW-11/F, inquest papers Ex.PW-11/G (Colly), statement of Deepak Panchal Ex.PW-11/H, statement of Naresh Kumar regarding identification of dead body as Ex.PW- 11/I, statement of Rakesh Rakesh regarding no objection to handing over of dead body to father of child as Ex.PW-11/J, tehrir as Ex.PW-11/K, site plan without scale as Ex.PW-11/L, pointing out memo of spot by accused Usha as Ex.PW-11/M, arrest memo of accused Deepak Ex.PW-11/N, personal search memo Ex.PW-FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 7 of 39
8 11/N-1 and disclosure statement Ex.PW-11/O. iv. PW-12 Ct. Vijay Mishra is also witness who accompanied IO to the spot on receipt of information.
v. PW-13 Inspector Jai Bhagwan, SHO is investigating officers (IO) who conducted investigation after registration of the FIR.
8) After conclusion of evidence, statement of accused was recorded u/s 313 Cr.PC, wherein they denied the prosecution evidence and claimed to be innocent.
9) In her statement u/s 313 Cr.PC, accused Usha Panchal admitted regarding FIR No.323/13 was got registered by wife of his son (accused Deepak Panchal) in which a settlement was arrived that custody of the child now deceased was handed over to co-accused Deepak on 19.12.2013. She also admitted regarding information given by her to her husband, who in turn informed the police station vide DD No.36-B and thereafter IO arrived at her house. She also admitted that she took the child to hospital where doctor declared her dead. She also stated that on account of matrimonial dispute with her son PW 1 in order to take revenge has named her. She further stated that she used to give due care to the child and child had skin disease and used to scratch her body and she was shown to the family doctor at Sagar Clinic and was under treatment.FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 8 of 39
9 She was only lady in the house and was required to do other household work and child was weak and used to fall on her own from bed as well as from walker and due to the same, she had some injury marks on her body. The child had fallen 3-4 days prior to the incident but she was taken to the doctor and doctor gave the medicine. On the day of incident, she was present at the kitchen, she heard the sound of fall, she saw her after few second she became unconscious. Thereafter, she immediately rushed to doctor Sagar, who told her to go to GTB Hospital. She has not caused any injury and taken due care of child. She is innocent. She stated that she would lead evidence in her defence.
10) Similarly, accused Deepak Panchal stated in his statement u/s 313 Cr.PC that PW-1 and PW-7, his wife and his father-in-law, deposed on account of matrimonial dispute and despite taking the settlement amount, she was revengeful and wanted to take take revenge therefore falsely named him and his mother as suspect. He also stated that at the relevant time he was present at Allahabad. He used to give due care to the child and child had skin diseased and used to scratch her body and she was shown to the family doctor at Sagar Clinic and was under
treatment. He is innocent. He also stated that he would lead evidence in his defence.
11) Both accused examined Sh. Vinod Kumar in his defence as FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 9 of 39 10 DW-1. On being shown, statement Ex.PW-11/C3, he stated that it is his statement given to police and same is correct statement.
12) I have heard Sh. Ravinder Bhati, Special P.P. for State and Sh.Krishan Gopal and Sh. Nasim Ahmed, Advocate for both accused. I have also gone through the record
13) Ld. Defence Counsel for both accused submitted that there are material inconsistencies in the testimony of witnesses and they are not reliable. Further the recovery is planted upon accused to falsely implicate them. The recovered articles are commonly used and available in the household. Further it is submitted that there was matrimonial dispute going on in between accused Deepak Panchan and his wife PW-1 regarding which PW-1 got registered a false case against her husband (accused) vide FIR No.323/13, U/s 498A/406/34 IPC & 4 D. P. Act wherein a settlement was arrived at in between them. In terms of compromise/settlement, the custody of the child was handed over to the accused persons just two months prior to the date of incident. Both accused were taking due care of the child and getting her treatment. The child was weak, due to which she used to fall on her own from bed as well as from walker and due to the same, she had some injury marks on her body. Further PW-1 and PW-7 have deposed against accused on account of said FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 10 of 39 11 matrimonial dispute.
14) Further, Ld. Defence counsel also submitted that opinion of the doctor is inconsistent with injuries noted on the postmortem.
15) On the other hand, Ld. Addl. PP for State submits that prosecution has succeeded in proving their case. The child was handed over to accused Deepak on account of which accused Usha was unhappy and therefore she was having ill-will against her. Further, accused Usha wanted to remarry his son accused Deepak and hence both were considering the child as impediment in the remarriage of accused and therefore they conspired to get rid of the girl child and in pursuance to the said conspiracy, the 2 years old girl child was tortured and even she was not given proper food which led to undernourishment. The accused Usha used to beat child with stick and used to burn the child with heated immersion rod which is apparent from her postmortem report.
Accused Usha got recovered the wooden stick and immersion rod from her house.
16) Further, Ld. Addl. PP for State submitted that at the time incident, only accused Usha and 2 years old girl child were present in the house and therefore accused Usha is required to discharge the burden u/s 106 of Indian Evidence Act to explain FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 11 of 39 12 the circumstances under which the girl child sustained injuries.
17) The prosecution case is based on the following circumstantial evidence as there is no eye witness:-
i. Motive i.e. matrimonial dispute and child handed over against wish;
ii. Postmortem of child. Injuries sufficient in ordinary course of nature to cause death;
iii. Recovery of immersion rod and danda. Subsequent opinion of doctor that injury could have been caused by them; and iv. Accused Usha and child only present in house at the time of incident and hence burden u/s 106 of Indian Evidence Act is on her.
18) In respect of above circumstances, the prosecution has examined mother, maternal grand father of child, doctor and investigation officers. PW-1 Smt. Rajni is mother of the deceased child. She testified on 20.12.2014 that presently she has been residing alongwith her parents at the given address for the last about 3 years. On 05.05.2011, she was married with the accused Deepak according to Hindu rites and rituals.
After the marriage the accused Deepak, Smt. Usha (mother-in-law), Pankaj @ Monty (devar) started harassing her and they also used to beat her. They all used to harassed FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 12 of 39 13 her and also used to demand gold chain, car, and cash etc. She lodged case at PS Shahdara vide FIR No.323/13 u/s 498A/506/34 IPC and 4 D. P. Act against accused persons. Thereafter on 19.12.2013 a bail application of accused Deepak Panchal was arrived at between her and the accused Deepak and as per the settlement accused Deepak had agreed to give her Rs.3.25 lacs and the custody of their child namely Ms. Chavi (Janvi) was to be given to the accused Deepak and the accused Deepak was to execute an FDR of Rs.1 lac in favour of her daughter and on the same day i.e. 19.12.2013 custody of her child was handed over to accused Deepak in proper condition. She stated that at that time her daughter Chavi was hale and hearty and was no having illness nor any injury on her person. The accused persons Deepak, Mrs. Usha, Pankaj @ Monty and Naresh (her father-in-law) had taken her daughter Chavi to their home from court itself and since then she had not met her daughter Chavi. She further testified that on 19.02.2014, her father had come from his factory to home and informed her that he had received a call in the factory that Chavi had expired. They made a call at 100 number to police regarding the said information and also reached PS M. S. Park and there her statement was recorded by the police. Statement of her father of was also recorded. She stated that she had told the police that at that time of handing over the custody of her FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 13 of 39 14 daughter Chavi to the accused persons she was having no mark of injury and she was healthy at that time. On 20.02.2014, she alongwith her father had gone to GTB Hospital and in the mortuary, she had identified the dead body of her daughter Chavi and there were injury marks on her body at several places and there were marks of injuries on her head also. There were marks of nails scratches on the chest and other part of body and she was very weak and lean at that time. She stated that she is sure that the accused persons namely Deepak, Mrs. Usha, Pankaj @ Monty and Naresh have intentionally killed her daughter Chavi for the reasons that they since her birth used to hate her and even they did not love her and even did not give her proper food since her birth. She also stated that her daughter Chavi was born on 24.03.2012 at General Hospital, Shahdara, Delhi and at that time, she was residing at her in-laws house. She had told all the facts to the police and the police officers had recorded her statement.
19) PW-7 is father of PW-1. He corroborated PW-1 that she was married with the accused and on 24.3.2012, deceased child was born and FIR No.323/13 u/s 498A/406/34 IPC got lodged by her daughter and settlement arrived on 19.12.2013 at the time of hearing of bail of accused in above case and custody of child was handed over to accused Deepak on that day itself.
FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 14 of 3915 He also corroborated that on 19.2.2014 he received information regarding death of child, call made to 100 number and also went to PS and informed the police. He stated that during identification process in mortuary, he noticed that there was mark on the body of Chavi and she was very weak and lean. He stated that his family members wanted to remarriage of accused Deepak and accused Deepak was also interested in his remarriage.
20) PW-10 Dr. Priyal Jain, Sr. Demonstrator, Department of Forensic Medicine, UCMS>B Hospital testified that on 20.02.2014, he was posted as Jr. Demonstrator and conducted postmortem upon the dead body of deceased Chhavi, 2 years old, female on the request of SI Hukum Singh. He stated that on General Examination - height and weight of the deceased were 72 cm and 5 kg respectively. Dead body of female child in brown shawl wearing grey socks, grey pajami, white dyper, red sweater, blue sweater, white banyan, purple woolen cap. Eyes closed, mouth closed, all other natural orifices NAD. Rigor mortis well developed, postmortem staining present over back and fixed. Greenish discolouration present over right side lower abdomen.
21) External Injuries as observed by doctor are as under :-
i. Bluish contusion of size 2 x 2 cm present over right side of forehead, 5 cm from mid line, 2 cm above eyebrow FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 15 of 39 16 ii. Brownish scabbed abrasion of size 1 x 0.2 cm present over back of head in mid line, 5 cm below occipital protuberance iii. Brownish scabbed abrasion of size 0.5 x 0.1 cm present over right side of face, 6 cm from mid line, 3 cm above angle of mandible iv. Brownish scabbed abrasion of size 0.7 x 0.2 cm present over left side of face, 6 cm from mid line, 2 cm above angle of mandible v. Brownish scabbed abrasion of size 0.3 x 0.2 cm present over front of left ear pinna vi. Multiple brownish scabbed abrasion of size 0.2 x 0.1 cm present in an area of 5 x 2.5 cm over left side of face, 4 cm from mid line, 1 cm above angle of mandible vii. Brownish scabbed abrasion of size 1 x 0.5 cm present over right side mastoid viii. Multiple brownish scabbed abrasion present in an area of 3 x 2 cm over left side of head, 0.5 cm from mid line, 9 cm above occipital protuberance.
ix. Multiple pale pink scar with easily removable blackish scab present in an area of 3.5 x 0.9 cm present over head in mid line 8 cm above glabella x. Pale pink scar present over right side of face of size FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 16 of 39 17 3.5 x 0.9 cm vertically placed 4.5 cm from mid line over ramus xi. Multiple pale pink scar with easily removable blackish scab present in an area of 9 x 6 cm from angle of mandible of one side to angle of mandible of other side in front of neck 2 cm above sternal notch xii. Pale pink linear parallel scar with patchy blackish scab easily removable, present over chest 5 in number with each measuring 3 x 0.9 cm size in an area of 5 x 3 cm in mid line, 2 cm below external notch xiii. Pale pink linear parallel scar with patch blackish scab easily removable present over right side of chest 2 in number each of size 3 x 0.9 cm over clavical 2 cm from mid line.
xiv. Pale pink linear parallel scar with patch blackish scab easily removable present over abdomen 2 in number each of size 5 x 0.9 cm in an area of 5.3 x 5 cm in mid line 6 cm above pubic symphysis.
xv. Pale pink linear parallel scar with patch blackish scab easily removable present over left side of back 3 in number each of size 2.5 x 0.9 cm in an area of 3 x 2.5 cm, 2 cm from mid line, 3 cm below nape of neck.
xvi. Pale pink linear parallel scar with patch blackish FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 17 of 39 18 scab easily removable present over right left side of back 3 in number each of size 3 x 0.9 cm in an area of 3 x 3 cm, 1 cm from mid line, over nape of neck.
xvii. Pale pink linear parallel scar with patch blackish scab easily removable present over back of left shoulder 3 in number each of size 1 x 0.9 cm in an area of 3 x 1 cm xviii. Brownish scab abrasion of size 2 x 1.5 cm present over back of left wrist xix. Bluish contusion of size 2.5 x 1.5 cm present over back of right elbow.
xx. Bluish contusion of size 3x1.5 cm present over back of left elbow xxi. Bluish contusion of size 1x1 cm present over lateral aspect of right foot, 3 cm from ankle joint xxii. Bluish contusion of size 2x1.5 cm present over medial aspect of right foot, 1 cm below medial melleolus xxiii. Bluish contusion of size 1.5x1 cm present over lateral aspect of left foot, 3 cm from ankle joint.
xxiv. Bluish contusion of size 2x2 cm present over medial aspect of left foot, 1 cm below medial melleolus
22) The observation of doctor regarding internal examination were as - Scalp - extra vassation of blood present over parieto FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 18 of 39 19 occipital region. Skull : NAD. Brain : 783 gm, sub-arachnoid haemorrhage present over bilateral temporal lobe, contusion over left parietal lobe, clotted blood present in left lateral ventricle and third ventricle. Neck : NAD. Rib Cage : NAD. Lungs : Right 86 gms , Left 62 gms, consolidation present in all lobes of right lung. Stomach : Empty, walls NAD. Intestine : filled with fluid and fecal matter. Liver : 219 gms, congested, greenish discoloration present over inferior surface. Spleen : 12 gms, congested. Kidneys : right 21 gms, left 20 gms, both kidneys were congested. Urinary bladder : Empty, walls NAD. Uterus : Empty, walls NAD. Pelvis and vertebra :
NAD. Time since death was about 1 day.
23) He stated that cause of death was shock as a result of antemortem injuries to head produced by blunt force impact.
24) He further stated that on 21.03.2014, an application regarding subsequent opinion in the aforesaid case was moved by Inspector Jay Bhagwan with two parcels. On opening of the parcels, one was containing wooden stick and another was containing immersion rod. After examining the aforesaid articles and going through the postmortem report, he had given pointwise answers of the queries asked by the Inspector Jay Bhagwan which are as under :-
i. Injuries no. 1, 2, 7 and 8 combined with internal injuries mentioned in head and neck column FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 19 of 39 20 were sufficient to cause death in ordinary course of nature. Above mentioned injuries were 2-3 days old.
ii. Above mentioned injuries were possible by the article no.1 (wooden stick) sent for examination.
iii. Injuries nos. 3 to 6 and injuries nos. 18 to 24 were 2-3 days old, injuries nos.9, 11 to 17 were about 1 week old and injury no. 10 was about 2 week old.
iv. Injuries no. 10, 12 to 17 were possible by article no.2 (immersion rod) sent for examination. He further added that the immersion rod should be in heating conditions to cause the abovementioned injuries.
v. As the weight of two years old deceased was 5 kg suggestive of under nourishment / malnourishment.
25) He proved his detail subsequent opinion. Further he identified immersion rod and wooden stick.
26) PW-11 SI Hukam Singh was the first investigating officer who alongwith other police staff reached at the spot on receipt of information where at the first floor of the said house dead body of the female child (deceased) wrapped in a brown colour shawl was found. The dead body was checked and there were multiple old injury marks on her body but no fresh visible injury was observed. He stated that on inquiry FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 20 of 39 21 grandmother of the deceased i.e. accused Usha told that at about 1.30 pm to 2.00 pm when she was making tea in the kitchen at that time she heard the noise of crying of the abovesaid deceased from the room and when she went to the room then she saw that the deceased was lying fallen there and was in unconscious condition. She informed her husband in this regard through telephone, who asked her to take the deceased child to the GTB Hospital and then she took the deceased child to the GTB Hospital and the doctor present at the emergency ward of GTB Hospital declared the said child as expired/dead. Thereafter, she returned to her house alongwith the dead body of the said child (deceased). She also told that the at the time of incident only she and the child (deceased) were present in her house. He recorded the statement of accused Usha.
27) PW-11 IO categorically stated that he inspected the abovesaid spot - there was no marks of blood or other fluid and no suspicious article was also found. On enquiry he came to know regarding FIR lodged by wife of accused Deepak and settlement. Regarding the death of the Chhavi, he informed her mother Rajni and Sh. Rakesh Kumar (father of Rajni).
He clicked photograph of the dead body of the deceased from his own mobile phone. Sh. Rakesh Kumar (maternal grand father of deceased child) who had made call at 100 number FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 21 of 39 22 came to the P.S M.S Park alongwith his daughter Rajni and duty officer of P.S M.S Park informed him regarding DD No. 20A. He left Ct. Vijay and Joginder at the spot for guarding the spot and he came at P.S M.S Park. He inquired from Rakesh Kumar and Rajni in which they expressed their suspicion as to killing of deceased child Chhavi by the in-laws of Rajni. He informed all these facts to the SHO P.S M.S Park who ordered to initiate inquest proceedings u/s 174 CrPC to him. Thereafter he went to the spot and the dead body of the deceased child Chhavi was taken to the GTB hospital mortuary and got preserved. Thereafter he came back at the P.S. M. S. Park and on that day Rajni and her father Rakesh gave him their statement.
28) On the next day i.e. 20.02.2014, postmortem of the deceased child was got conducted and after postmortem, dead body was handed over to Deepak (father of deceased) for the last rites after taking no objection of paternal grand father on record. He received the postmortem report on 24.02.2014 and after going through the same and statements of witnesses Smt. Rajni and Rakesh Kumar he made a Tehrir and got the FIR registered. The further investigation was taken up by Inspector Jai Bhagwan, SHO.
29) PW-11 SI Hukum Singh further deposed that he alongwith the IO Inspector Jai Bhagwan went to the spot. At his instance, FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 22 of 39 23 site plan was prepared by IO Inspector Jai Bhagwan. IO made inquiry from the persons of the family of the accused at the spot. They returned to the police station thereafter. On 25.02.2014, he remained involved in the investigation alongwith the IO and went to Nathu Colony Chowk and there met with the informer with whom IO had conversation (sic). They returned to the police station back. Lady Constable Babita was joined with them and then they went to the spot. IO made inquiry from Smt. Usha, Naresh, Deepak and Pankaj @ Monty and all were taken to the police station. In the presence of Lady Constable Babita IO made inquiry from Smt. Usha who accepted her involvement in the offence. IO decided to arrest Smt. Usha. Accused Usha got recovered wooden danda from the chowk of first floor. Accused Usha got recovered water immersion rod from the bathroom. Thereafter they returned to the police station. IO got deposited the case property with Malkhana. Accused Deepak was also arrested. On 21.03.2014, IO gave him an application to get the opinion from Department of Forensic, GTB Hospital of the queries with examination of Exhibits. He left for GTB Hospital after receiving the exhibits from the MH(C)M which were in sealed conditions alongwith road certificate. He submitted the same to Forensic Department, GTB Hospital and handed over the acknowledgement to the receipt to the IO after FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 23 of 39 24 retuning to the Police station from GTB hospital. On 04.04.2014, IO instructed him to receive the opinion from the Forensic Department of GTB Hospital. He collected the opinion and also collected the exhibits. He deposited the exhibits with the MH(C)M. He handed over the opinion to the IO. On 12.04.2014, he visited the spot alongwith draftsman HC Sonu who prepared the scaled site plan at his instance. He stated that so long the exhibits are remained in his custody same were intact.
30) PW-13 Inspector Jai Bhagwan, SHO, who conducted investigation after registration of FIR, corroborated first IO regarding site plan, conversation with secret informer and thereafter visit to spot, enquiry made from family members of deceased child, accused Usha admitted her guilty and thereafter she and her son accused Deepak Panchal were arrested and recoveries of danda and immersion rod were effected at the instance of Usha. He also corroborated regarding scaled site plan of the spot. He also corroborated regarding subsequent opinion given by doctor. He deposed that Smt. Usha gave the reply to him that she used to have illwill against the deceased child and she used to give her beatings. She further told him that she was having ill-will against her because the custody of the deceased child was given to her without her concurrence and she had felt offended as she was FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 24 of 39 25 given custody of the child forcibly.
31) Therefore, it is admitted case of prosecution that Smt. Rajni (mother of the deceased child) had already filed a case against her husband/accused Deepak (father of the deceased child) FIR No.323/13 under section 498A/406/34 IPC and 4 DP Act in the PS Shahdara, in which a settlement was arrived at in court on 19.12.2013, while hearing bail of accused Deepak Panchal, and according to which, father of deceased Deepak had to pay Rs.3,25,000/- to his wife and custody of the child was handed over to him in the court itself. IO has stated that he enquired from Rakesh Kumar and Rajni (maternal grand father and mother of child respectively) in which they expressed suspicion as killing of deceased child Chavi by in-laws of Rajni. Further it is alleged that the accused persons were not happy with girl child and also seen her as obstacle in remarriage of accused Deepak Panchal.
32) Admittedly matrimonial dispute were going on in between accused Deepak Panchal and his wife (parents of deceased child), though it was compromised, yet the possibility that they could have deposed against in-laws to take revenge cannot be ruled out. They were not present at the spot at the time of incident. They had only raised suspicion. It is settled law that suspicion cannot take place of evidence. The reason of victim child was killed on account of that is only based on surmises.
FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 25 of 3926 The same therefore is far fetched as motive of crime.
33) Now another question arises whether the injuries noticed by doctor were sufficient to cause death or same were caused on account of fall ?
34) It is relevant here to quote observation of Hon'ble Supreme Court of India in case titled as Nankaunoo v. State of U.P., AIR 2016 SC 447, to quote:-
11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 Indian Penal Code consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death.
Considering the clause thirdly of Section 300 Indian Penal Code and reiterating the principals in Virsa Singh's case, in Jai Prakash v. State (Delhi Administration) MANU/SC/0526/1991 : (1991) 2 SCC 32, para (12), this Court held as under:
12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, MANU/SC/0153/1981: (1981) 3 SCC 616 observed thus : (SCC p. 620, para 7) These observations of Vivian Bose, J.
have become locus classicus.
The test laid down in Virsa Singh case MANU/SC/0041/1958 : AIR 1958 SC 465 for the applicability of Clause Thirdly FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 26 of 39 27 is now ingrained in our legal system and has become part of the rule of law.
The Division Bench also further held that the decision in Virsa Singh case MANU/SC/0041/1958 : AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature.
Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 27 of 39 28 other surrounding circumstance. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.
35) As per opinion of PW-10 Doctor, injuries no.1, 2, 7 and 8 combined with internal injuries mentioned in head and neck column were sufficient to cause death in ordinary course of nature and these injuries were possible by wooden stick. It is relevant here to reproduce injuries no.1, 2, 7, and 8, which are as under:-
1. Bluish contusion of size 2 x 2 cm present over right side of forehead, 5 cm from mid line, 2 cm above eyebrow
2. Brownish scabbed abrasion of size 1 x 0.2 cm present over back of head in mid line, 5 cm below occipital protuberance
7. Brownish scabbed abrasion of size 1 x 0.5 cm present over right side mastoid FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 28 of 39 29
8. Multiple brownish scabbed abrasion present in an area of 3 x 2 cm over left side of head, 0.5 cm from mid line, 9 cm above occipital protuberance.
36) Internal injuries in respect of head and neck column are -
Scalp - extra vassation of blood present over parieto occipital region. Skull : NAD. Brain : 783 gm, sub-arachnoid haemorrhage present over bilateral temporal lobe, contusion over left parietal lobe, clotted blood present in left lateral ventricle and third ventricle. Neck : NAD.
37) However, in his cross-examination, PW-10 doctor has stated that injury no.2, 3, 4, 5, 6, and 7 may be produced by nails scratching also. Further, in reply to question, the injury no. 2, 3, 4, 5, 6 and 7 are on account of possible scratching by the deceased herself due to dryness of skin which is very common in winters, he stated that it may be possible if the child is having eczema or dryness of skin. However, in reply to court question, did he find any disease in the nature of eczema or dryness of skin on the body of the deceased, he stated that he has not seen the same on the body of deceased. He stated that he is not a dermatologist/skin specialist. However, he can opine about the condition of skin as per general medical knowledge acquired during his MBBS course. He admitted that as per the inquest paper, it does not mention any apparent injury on the head. The injuries on the head are not possible by FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 29 of 39 30 mere fall as based on the site of the injury.
38) The doctor has stated that injuries no.2 and 7 may be produced by nails scratching. Therefore if injuries no.2 and 7 are possible by nail scratching, we are left with other injury i.e. 1 and 8, which doctor has opined that these injuries combined with internal injuries mentioned in head and neck column were sufficient to cause death in ordinary course of nature and these injuries were possible by wooden stick. However, no abnormality was discovered in the neck by the doctor. Therefore the opinion that injuries no.1, 2, 7, and 8 combined with internal injuries mentioned in head and neck column were sufficient to cause death is self contradictory as no abnormality was discovered by the doctor in neck of the child. Further doctor on one hand opined that injury no.2 and 7 are possible by scratching of nail and on the other hand he opined that injuries on the head are not possible by mere fall as based on the site of the injury. It is also observed that the child was having multiple scab wounds over her body. Primary injuries which have resulted in death is injury no.1. The site of the injury no.1 over right side of forehead, 5 cm from mid line, 2 cm above eyebrow, which is in my opinion is possible by fall if one falls on the ground facing down. Further admittedly the child was highly malnourished and therefore it is possible that on account of weakness in her body those otherwise injuries, FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 30 of 39 31 which are minor in nature, have contributed to death and therefore the opinion of the doctor that these injuries combined with internal injuries to head and neck were sufficient to cause death in ordinary course of nature is to my opinion is incorrect as there was no abnormality discovered in the neck region. Further such injuries could have been possible with fall as other injuries were older and were not direct and proximate cause of death.
39) Now next question is who is responsible for causing injury ?
40) Admittedly there is no eye witness in this case. At the time of incident, as per prosecution story, only accused Usha was present in the house. As regards other evidence i.e. statement of mother and maternal grand father of the child, they are not free from blemish as they had grudge against family of accused persons on account of matrimonial dispute. Further even after post matrimonial settlement, the conduct of the witnesses is questionable. In her cross-examination, it was agreed in the settlement that the accused Deepak would keep her daughter Chavi with him and would also execute FDR for Rs.1 lac in her favour. She admitted that accused Deepak had filed a case of restitution of Conjugal Rights u/s 9 of HMA which is pending. She stated that she does not want to live with the accused Deepak. She admitted that she has filed a divorce petition after the case of restitution of Conjugal Rights FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 31 of 39 32 filed by the accused Deepak.
41) PW-7 Maternal grand father of the child stated in his cross-
examination that he never visited the house of the accused Deepak to meet child since when she was handed over to accused till her death. He never made any call to accused Deepak to ask about Chavi. He denied the suggestion that he wanted to re-marry his daughter due to which they handed over the custody of Chavi to accused Deepak. He did not make any application to take the dead body of Chavi nor the same was written by Rajni. He admitted that he did not raise any objection against the handing over the dead body to accused Deepak. He also admitted that they did not participate in the last rite/ cremation of Chavi.
42) As regards statement of Usha initially given to IO, same was exculpatory in nature and therefore can be looked into for finding explanation. As far as submission of Ld. Addl. PP for State is concerned that since there was only 2 persons and child was only 2 years old who could not have raised alarm and was found dead, the burden is on the accused Usha u/s 106 of Indian Evidence Act to explain the circumstances under which the child has died, lets find out firstly as to who were present in the house at the relevant time ? At the time of incident, as per prosecution story, only accused Usha was present in the house. Accused Deepak Panchal was out of FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 32 of 39 33 station. Paternal Grand father of child (dada) was at his factory, who was informed by accused Usha over telephone that child has fallen who advised her to take to doctor immediately. In her initial statement made to IO on 19.02.2014, which is Ex.PW-11/C, Usha has categorically stated that on 19.02.2014 her husband left house at 7:45 a.m. for his office and she alongwith her younger son Pankaj @ Monty and grand daughter Chavi were present in the house. Further, allegedly accused Usha has also made disclosure statement which is Ex.PW-5/A-2 dated 25.02.2014. According to which, she has also stated that on 19.2.2014, she was busy in doing household work, her husband has gone to his work and her son Deepak has also gone for his work to Allahabad and her younger son was sleeping in the inner' side room and child Chavi started crying in the outer room. The prosecution has relied upon the said statements. Therefore according to Usha, at the relevant time, apart from her and child, her younger son was also present.
43) Statement of Pankaj @ Monty was also recorded by IO on 19.2.2019, which is Ex.PW-11/C2, wherein he also stated that he alongwith her mother and niece (now deceased child) were present in the house. At 1:00 p.m., he went to doctor at M. S. Park as he was suffering from fever for last 3-4 days. There is no investigation to verify the said fact whether younger son of FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 33 of 39 34 accused Usha was also present in the house or has gone to doctor for treatment ? Therefore there is contradiction and prosecution has failed to prove that only deceased child and accused Usha were present in the house at the relevant time. Therefore accused Usha is not required to discharge burden u/s 106 of Indian Evidence Act.
44) Now coming to other circumstance i.e. recovery of danda and immersion rod. IO in her cross-examination has stated that recovery of same was effected on 25.02.2014 at about 5:30 p.m. from the house of the accused Usha. No one had joined the investigation during recovery of danda and immersion rod. He admitted that house of accused Usha is located in thickly populated area. No notice was given to public persons to join the investigation of the recovery, its seizure and sealing of danda and immersion rod. He had not put identification mark on the same. He did not remember the name of the police officials to whom he handed over the seal after sealing the parcel. He did not prepare handing over memo of seal.
45) The immersion rod is very common objects which is easily available in houses for the purpose of heating water. As regards danda, as per direction of this Court, MHC(M) has produced a pullanda duly sealed with the court seal. Seal is open and one wooden stick is taken out, which is about 3 ft. in length having green plastic cover of about 5 inch. Same is of FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 34 of 39 35 small diameter i.e. 2.0x2.0 cm on one side and 1.8x1.8 cm on other side, used for wrapping fabric on it for sale by cloth merchant, which is smaller then danda commonly known. Therefore both recovered articles - immersion rod and danda- are very common object and easily available in the houses. Further, admittedly no independent witness has joined in the investigation at the time of recovery of said articles despite the fact that house of the accused Usha was situated in thickly populated area. Therefore not much credence can be attached to the recovery of danda and immersion rod, which are easily available in the houses and it cannot be said that same were in exclusive knowledge of the accused Usha and were recovered in pursuant to her disclosure statement. Hence the disclosure statement of Usha cannot be read into evidence, which is otherwise inadmissible in evidence.
46) The law on the circumstantial evidence is now well settled by Hon'ble Supreme Court of India in case titled as State of U.P. v. Satish, AIR 2005 SC 1000 wherein Hon'ble Supreme Court observed with approval the law laid down in case titled as Padala Veera Reddy v. State of A.P. & Ors, AIR 1990 SC 79 wherein it was held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 35 of 39 36 and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
47) In view of above law, the prosecution has to fully prove circumstances from which the conclusion of guilt is drawn and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
48) As per discussion in the foregoing paragraphs, prosecution has failed to establish that death of the child was caused with the danda and not possible by fall. Further the recovery of articles cannot lead to inference that they were within exclusive FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 36 of 39 37 knowledge of the accused and hence recovered articles cannot be used against accused. Further as already discussed, alleged motive is too weak to raise any inference against accused. Therefore prosecution has failed to prove that both accused hatched conspiracy to commit offence and in pursuant to said conspiracy, they committed murder of the child beyond reasonable doubt. Therefore prosecution has failed to prove charge/case u/s 120B IPC and 302/120B IPC beyond reasonable doubt. Accordingly both accused are acquitted of the charges 120 B IPC and 302/120 B IPC.
49) Now we are left with charge under S. 23 of JJ Act.
50) PW-10 doctor on general examination observed - height and weight of the deceased were 72 cm and 5 kg respectively and subsequently opined as the weight of two years old deceased was 5 kg suggestive of under nourishment / malnourishment.
51) In reply to court question that in this case, the child was aged about 2 years an was weighing about 5 kg having height of 72 cms as per his report and what should be the normal weight of child of this age and height, PW-10 Doctor stated that normal weight is about 12 kgs and height is about 85 cms. In reply to further court question that is it possible that the weight of the child gets reduced to 5 kg from the normal weight within a period of 2 months i.e. since the child given in the custody of FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 37 of 39 38 accused person from the custody of her mother, the doctor stated that the malnutrition is severe and of chronic in nature as the height is also less and it is not possible to get reduced from normal weight in mere 2 months.
52) Admittedly the child was within custody of accused Usha and accused Deepak Panchal, who are grand mother and father of the child respectively, since last two months. Since the child was living with them, the burden under S. 106 of Indian Evidence Act if forced upon both of them being grand mother and father of the child to explain under what circumstances the child was malnourished and underweight. It is relevant here to quote, S. 23 of JJ Act, as under:
S. 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 willfully 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.
53) The child was in active control and in charge of both accused.
He was malnourished and underweight. There were also multiple scab injuries over her different parts of body. They have failed to bring on record anything to show that they were taking due care of the child and getting her treatment done during the period the child remained with them. As far as FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 38 of 39 39 testimony of DW-1 Sh. Vinod Kumar to the effect that child was being treated fairly by the accused persons is concerned, on the face of it appears to be incorrect as the child was underweight and malnourished. Further accused persons failed to prove/bring on record any document to show that they were taking due medical care of the child. Therefore the testimony of defence witness is unsubstantiated and hence rejected.
54) Further the doctor has categorically stated in reply to court question that it is not possible to get reduced from normal weight in mere 2 months. It is unfortunate that female child was neglected not only by father and grand mother but also by her own mother. The love to the child by mother can be seen that even after the child was died, mother did not come forward to take her custody for last rites and even she did not attend the last rites ceremony of her own child.
55) Therefore in the totality of the facts and circumstances of the case, both accused are convicted for offence punishable u/s 23 JJ Act, 2000.
56) Let the accused be heard on quantum of sentence.
Digitally signed by GURDEEP SINGH Announced in the open court GURDEEP Location: Addl. Seessions Judge-1 today i.e. 20.08.2019 SINGH (POCSO),Shahdara/KKD Date: 2019.08.21 (GURDEEP SINGH) 11:37:51 +0530 ASJ-1 (POCSO) /SHAHDARA KKD/DELHI/20.08.2019 FIR No.:103/2014, PS: M. S. Park State v. Usha & Anr. Page 39 of 39