Delhi District Court
State vs . Kamoo @ Kiran Etc. on 8 March, 2007
IN THE COURT OF SHRI SANJAY SHARMA, ADDITIONAL
SESSIONS JUDGE, KARKARDOOMA COURTS, DELHI.
SC No.129/06
STATE VS. KAMOO @ KIRAN ETC.
FIR NO. 100/00
P.S. Seema Puri.
U/S:498-A/313/34 IPC
1. Kammo @ Kiran wife of Fateh Mohd.
R/o: F 60, Old Seema Puri,
Delhi.
2. Shabir Ahmed son of Munekha R/o:A-231, Old
Seemapuri, Delhi.
3. Shamim Bano wife of Shabir Ahmed R/o: A 231,
Old Seema Puri, Delhi.
4. Mohd. Sahzad son of Shabir Ahmed R/o: A 231,
Old Seema Puri, Delhi.
5. Vipin Chand @ Chahat Jain s/o: Om Parkash
Gupta, R/o: C 300, Old Seema Puri, Delhi.
(Since expired)
JUDGMENT
1. The case of the prosecution in brief is that the complainant Ameena was married to accused Shahzad according to Muslim rites on 25.8.96 and sufficient dowry was given in the marriage. It has been alleged that after few months of marriage, her father in law, mother in law and husband started harassing her and used to compel her to bring Rs. 50,000/- from her parents and used to give beatings to her. A daughter was born to the complainant after about a year of marriage. It has further been alleged that accused Shahzad was having illicit relations with Chahat @ Jahan an 1 eunuch. It has further been alleged that in Jan. 2000, when the complainant got pregnant for the second time and was four months pregnant, her husband Shahzad placed some tablet into her vagina as a result of which, she started feeling problem and was admitted to GTB Hospital. She was again admitted to the hospital on 24.3.00 and the matter was reported to the police and her statement was recorded on 29.3.00. Since then, she is residing alongwith her parents. It is alleged that due to the acts committed by the accused miscarriage was caused to the complainant without her consent. On completion of investigation chargesheet was filed against five accused persons namely Kammo @ Kiran who was the midwife and against whom it has been alleged that she was instrumental in placing some chemical/medicine into the vagina of the complainant at the behest of the other co accused which resulted into the miscarriage. The other accused were Shabir Ahmed, Shamim Bano, father in law and mother in law of the complainant, Mohd. Shahzad the husband of the complainant and Vipin Chand @ Chahat Jahan, eunuch, for the offences punishable under Section 498A/313 IPC.
2. After the case was committed to the court of sessions and on considering the material on record, a charge for the offences punishable under Section 498A/34 IPC was framed against accused Shabir Ahmed, Shamim Bano and Mohd. Shahzad and another charge for the offence punishable under Section 313/34 IPC was framed against all the above named five accused persons dated 12.9.01 to which the accused pleaded not guilty and claimed trial.
3. During the course of trial, accused Chahat @ Jahan expired and proceedings were abated against her.
4. The prosecution has examined 13 witnesses in all at the trial.
2PW1 Hafiz Mohd. was the father of the complainant who deposed about the fact of marriage and the demand of Rs. 50,000/- by the accused persons after her marriage as well as about the miscarriage caused to the complainant in the aforesaid manner. PW2 Ameena was the complainant herself who deposed the entire set of facts and proved her statement to the police as Ex.PW1/A and to the SDM as Ex.PW1/B. PW3 Farad Jahan deposed that she is residing in front of the house of the complainant and had not heard about any quarrel between the husband and wife. She was declared hostile by the prosecution and was cross examined but to no result. PW4 Nafisa Begam was the mother of the complainant. She too deposed about the factum of marriage of the complainant with accused Shahzad and the demand for money as also about the miscarriage. PW5 Sanno was also declared hostile by the prosecution. PW6 Hazi Mustkin Ansari was a witness to the nikah between the complainant and accused Shahzad and he proved the nikahnama Ex.PW6/A. PW7 Gazi Mohd. Zahil was the Qazi who performed the nikah between the complainant and Shahzad. PW8 Dr. Ruchika Garg, proved the MLC of the complainant as Ex.PW8/A and also gave her entire medical history. She also proved the endorsement on Ex.PW12/A as Ex.PW8/B. PW9 Shahid Ali was another witness to the marriage of the complainant. PW10 Dr. Abha Sharma proved another MLC of the complainant as Ex.PW10/A. PW11 SI Dheeraj Singh was the IO of this case who deposed about the investigation conducted by him and proved the relevant documents prepared during the investigation. PW12 Shri G.L. Vohra, SDM, proved the statement of the complainant recorded by him as Ex.PW12/A .PW13 SI Bhagwan Singh was the duty officer who recorded the present FIR and proved the same as Ex.PW11/J.
5. It is to be mentioned here that during the course of trial, accused eunuch Vipin Chand @ Chahat Jahan expired and proceedings were abated against him.
36. Statement of the accused persons were recorded under Section 313 Cr.P.C and the entire incriminating evidence was put to them which they denied and pleaded innocence.
7. The accused also examined four witnesses in their defence. DW1 Mohd. Farooq deposed that accused Shabir is residing in front of his house and known to him since his childhood and that he is running a grocery shop and having a good character. He also deposed that his son accused Shahzad entered into a love marriage and thereafter he was turned out of the house by Shabir and since then, he is residing separately and had never came to the house of accused Shabir except once or twice. DW2 Mohd. Shahid deposed that he is residing in front of the house of accused Shahzad and never saw any quarrel between the husband and wife. DW3 Nasreen is the wife of the younger brother of accused Shahzad. She also deposed that accused Shahzad was not residing with them and she never heard about any beatings etc. given to the complainant by the accused. DW4 Smt. Zubeda was examined on behalf of accused Kammo @ Kiran and she deposed that the said accused is a widow lady and works as part time maid and has never worked as a midwife.
8. I have heard the Ld. APP for the State and Shri S. Iqbal counsel for the accused Shabir and Shamim Bano and Shri Hare Ram Advocate for accused Mohd. Shahzad and Shri M.K.Sherwanti Advocate for accused Kammo @ Kiran.
9. It was argued on behalf of the State that there are serious allegations against all the accused persons and they not only committed atrocities upon the complainant but had made her life miserable. It was further argued that it has come on record that the complainant had to undergo 4 various operations and at present, she is even unable to attend to her daily needs. On the other hand, accused Shahzad has already married again and is enjoying the life. It was thus argued that the case against the accused persons has been duly proved.
10. Ld. counsel for the accused argued that the prosecution has been unable to prove its case against any of the accused. It was argued that accused Shabir and Shamim Bano were residing separately from accused Shahzad and the complainant and they had no interference in their family matters. It was also argued that accused Kammo has been implicated only because she had close liaison with the family of the accused. Ld. counsel for the accused further challenged the truthfulness and trustworthiness of the complainant while pointing out towards the various contradictions appearing in her different statements. It was pointed out that there are as many as five statements/complaints made by the complainant which are on record and in each and every statement she has changed the facts and thus is not a reliable witness. It was further pointed out by the Ld. counsel for the accused that the witnesses examined by the prosecution in this case are all formal in nature except PW1, PW2, PW4 and PW8.
11. PW1 was the father of the complainant. He deposed about the fact of marriage which is undisputed. The other facts deposed by him were all hearsay as he admitted that the same were told by the complainant to her mother, who in turn told the same to him. It was also deposed that the factum of the child dying in the womb of the complainant was told to him by the doctor. Thus, not much reliance can be placed upon his testimony. In his cross examination he admitted that for about two years after marriage, the complainant resided with her in laws and thereafter she alongwith her husband shifted in a separate house which was about 4/5 streets away from her in laws house. He also admitted that before being admitted to the 5 hospital, the complainant was residing with her husband in a separate house. This witness further deposed that the husband of the complainant i.e accused Shahzad used to demand dowry and other items from the complainant but never raised any demand directly from him.
12. PW4 Nafisa Begam was the mother of the complainant. She deposed that the accused Shahzad started beating her daughter after about three years of her marriage and only the said accused demanded Rs. 50,000/- for his business but nothing was paid and as such her daughter was beaten. She also alleged that once accused Shahzad poured kerosene oil upon the complainant but could not set her or fire as she escaped. She had also deposed about the alleged miscarriage caused by the accused to the complainant. In her cross examination she deposed that she never lodged any complaint to the police against the accused regarding demand of dowry or harassment. She also deposed that the complainant was admitted in the Hospital for five times and was operated upon, and that Rs. 1,50,000/- were spent in the treatment of the complainant.
13. The main witness in this case was the complainant herself who was examined as PW2. She, in her deposition before the court, testified that after her marriage with accused Shahzad she started residing with her in laws and Chahat @ Jahan an eunuch with whom her husband was having illicit relations. She also deposed that the house of her in laws was about 2/3 streets away from her house. She deposed that her husband and all the other accused started harassing her and used to beat her and to force her to bring Rs. 50,000/- from her parents. She gave birth to a child after one year of marriage and after two years of the birth of the first child she again became pregnant. She deposed that when she was in the third month of pregnancy all the accused persons including eunuch Chahat @ Jahan put some medicine into her vagina as a result of which, she started bleeding and was treated at 6 GTB Hospital. She alleged that she was left in the GTB Hospital by the accused and no one came to look after her. She further deposed that her condition deteriorated and her vaginal track and rectum conjoined and she started passing stool through her vaginal track. She further deposed that due to the administration of the said medicine, the head of the fetus got damaged and vanished and it died and she was to be aborted. She further deposed that she was operated upon five times and is still under treatment and unable to perform her routine chores. She also alleged that accused Kammo was working as midwife and all the accused persons had joined hands to kill her child for want of dowry. Thus, she made categorical allegations against all the accused persons.
14. Ld. counsel for the accused pointed out to her previous statements. She gave her first complaint/statement to the police on 28.3.00. In that complaint, she made allegations only against her husband Shahzad, her father in law Shabir and eunuch Chahat @ Jahan. In that complaint, she alleged illicit relations between her husband and the eunuch and further alleged that her in laws used to taunt her for bringing less dowry and that they used to demand Rs. 50,000/- from her and used to give beatings to her. She also alleged in that complaint Ex.PW11/K that on one occasion the eunuch and her husband alongwith her mother in law poured kerosene oil upon her and tried to kill her but she was saved by one Abdul Rashid. She further alleged in the said complaint that on 2.1.00 while she was pregnant, her husband Shahzad called accused Kammo Dai who advised her to be taken to the hospital but at that moment her father in law Shabir, Chahat @ Jahan, eunuch brought one bottle which contained some acid and forcibly administered it into her private parts and since then she started bleeding. Thereafter her brother in law Irshad and her parents came and took her to Red Cross Hospital from where she was referred to GTB Hospital where she was discharged after medication but she continued having bleeding since 7 then. She further alleged that on 28.3.00, she again came to the hospital where her ultra sound was conducted and it was found that the fetus had expired and therefore, she was operated upon and the fetus was removed.
15. Her second statement was recorded by the police on 29.3.00 Ex.PW2/A in the presence of the Dr. In that statement she alleged that after sometime of marriage, her husband, mother in law and father in law used to force her to bring Rs. 50,000/- from her parents else they would not keep her. In that complaint also, she alleged illicit relations between her husband and an eunuch Chahat @ Jahan. She further alleged that in Jan. 2000, when she was four months pregnant, her husband kept one tablet into her vagina which resulted into some problem to her and for which she is being treated at GTB Hospital and was admitted there on 24.3.00. She further alleged that since Jan. 2000, she is residing with her parents.
16. Her third statement was recorded under Section 161 Cr.P.C on 13.4.2000 in which she alleged that after sometimes of her marriage, her husband, father in law and mother in law started harassing her for dowry and used to beat her and they also demanded Rs. 50,000/- from her. She also alleged that in Jan. 2000, while she was three months pregnant, her husband, eunuch Chahat @ Jahan and Kammo dai placed "something"into her vagina for three days continuously as a result of which, she started bleeding and she got herself treated at GTB Hospital. She alleged that she started passing stool through her vagina, but she never reported the matter to the police. She further stated that in marriage her condition again deteriorated and her rectum and vaginal track conjoint and her parents admitted her in GTB Hospital where her ultra sound was got done which revealed that the child had died in the womb. She had also alleged illicit relations between her husband and eunuch Chahat @ Jahan. She made her fourth statement before the SDM which is Ex.PW2/B dtd. 25.4.00. In this statement, she alleged 8 that about 8 months earlier, all the accused had poured kerosene oil upon her and tried to kill her but she never made complaint to the police as the life of her aged father was in danger and also because her 10 sisters were to be married. She alleged that her husband used to ask her to bring Rs. 50,000/- and sometimes Rs. 80,000/- from her father alongwith gold ring, chain and jewellery but she was unable to give the same. She further alleged that while she was three months pregnant, the accused called Kammo who after examination told her that there was no child in her womb but there was only a swelling and thereafter the eunuch Chahat @ Jahan, her husband, father in law and mother in law all brought some chemical in a bottle and Kammo administered the said chemical with some instruments into her vagina resulting in burning sensation and as a result of which, her fetus got destroyed. She also alleged that her father in law and mother in law used to get her beaten by her husband and did not used to provide food to her. She further alleged that about a month ago, her bleeding exceeded and she was taken to GTB Hospital by the accused persons and after getting her admitted, nobody came. Later on when her parents etc. came to know about it, they took her care. She also stated that because of the atrocities committed by the accused her condition has got worsened and she is unable to attend to her daily chores.
17. The last statement of the complainant was recorded during the trial before the court on 20.5.02 which has been mentioned herein above.
18. Thus, it is clear from the reproduction of different complaints/statements, as above, made by the complainant, at different times, that she had not been consistent with the allegations and there are contradictions and variations in all her statements.
19. The accused namely Shahzad, Shabir and Shamim Bano have 9 been charged with the offence punishable under Section 498A IPC i.e to say that they subjected the complainant to mental and physical cruelty. The best evidence to prove the said charge was of the complainant herself as other two witnesses examined by the prosecution to prove this charge were the parents of the complainant but as already observed, their testimony is merely hearsay.
20. It has come on record and has been admitted by PW1 and also by PW2 (though not directly) that after marriage the complainant PW2 started residing separately alongwith her husband. It has already been observed that PW1 in his cross examination admitted that the complainant resided in the house of her in laws for about two years and thereafter shifted to another residence. He also admitted that when she was hospitalized, she was residing separately and only with her husband. PW2 in her examination in chief itself deposed that after marriage she was residing with her in laws but further deposed that the house of her in laws was situated about 2/3 streets away from her house. This shows that even as per her deposition, she was residing separately from her in laws and only with her husband. In her cross examination, PW2 deposed that her in laws started raising demand of dowry after two years of her marriage. Whereas, in her examination in chief she did not give any period as to when the demand started. In her previous statement as well as mentioned here in above, she has not given any period when the alleged demand of dowry was made by the accused.
21. In her statement made to the SDM Ex.PW2/B, she made the allegations of demand of money only against her husband accused Shahzad. In her first statement Ex.PW11/K she made a general allegation against all the accused regarding demand of dowry. In her statement Ex.PW2/A, she alleged that demand started after few days of her marriage. Similar allegation was made by her in her statement under Section 161 Cr.P.C.
10Similarly, the allegation that she used to be beaten by accused is also not consistent. In her complaint Ex.PW11/K, she alleged that her in laws used to demand dowry and beat her but no time/date has been mentioned of the said demand or beatings. She also alleged in that complaint that on one occasion, the accused tried to kill her and poured kerosene oil upon her but she was saved by one Abdul Rashid. This allegation does not find mention in any other statement or complaint of PW2 except that made to the SDM Ex.PW2/B. She also did not alleged any such fact in her deposition before the court.
22. The Ld. counsel for the accused placed reliance upon the judgments delivered in Satyabir Singh Vs. State of Haryana 1993(2) RCR P&H page, 520, Kishan Sharma Vs. State of Haryana 1989 (2) RCR P&H page 13, Devi Lal Vs. State of Haryana 1993(1) RCR P& H page 494 and Harbans Lal Vs. Rama Rani 1992(1) RCR page 682. In all the above cases, a common observation was made by the Hon'ble High Court that: "where there are no specific allegations of cruelty against the accused with regard to allegations of maltreatment regarding time, place, manner of beating and demand of dowry, the ingredients of Section 498A IPC were not made out." Similarly, in the instant case, as already detailed here in above, the allegations regarding demand of dowry and cruelty meted out to the complainant, are general in nature, vague and shorn of details regarding date, time and manner and thus cannot be relied upon. Hence, I am of the opinion that the prosecution has failed to prove the charge for the offence punishable under Section 498A/34 IPC against any of the accused.
23. The second charge levelled against all the accused was under
Section 313/34 IPC for causing miscarriage to the complainant without her consent. In this respect, I would like first of all to discuss the medical 11 evidence which has come on record. PW8 Dr. Ruchika Garg, had proved the MLC and the previous medical records of the complainant. According to her testimony, which is based on the medical records, the complainant was admitted at GTB Hospital on 17.1.00 with three months pregnancy and with alleged history of dai (midwife) interference and allegations that some chemicals were put into her vagina daily for three days following which, she started having bleeding per vagina and passing stools per vagina. On examination, recto vaginal fistula 2 x 3 cms was detected, 1 cm. above anal sphincter with 16 weeks of pregnancy. On that day, the fetus was found viable and thereafter the repair of the fistula was conducted on 22.1.00 and she was discharged.
24. PW8 further deposed that the complainant again reported back on 28.3.00 with history of bleeding per rectum. On her examination, the fetus was not found to be alive(intra uterine death) and again a rectovaginal fistula was detected. She was aborted on 30.3.00 and the fetus was taken out after surgery. Her MLC was prepared on 19.4.00 at the request of her father. In the MLC, no abnormality was detected except again a fistula of 1 x 1 cms, 3 cms. above the anal opening .
25. In her cross examination, she admitted that the name of the chemical which was allegedly administered into the private parts of the complainant was not named. She further deposed that the complainant was operated upon twice, the first operation was performed for repair of the fistula. She further deposed that the fistula can develop because of chemical administration/trauma. She also deposed that when the complainant was admitted after two months again she was having high fever which could have been caused because of sepsis in any part of the body and can be for many reasons including infection in the body and even because of administration of chemical in the body but she could not give any definite opinion. However, 12 she admitted that no postmortem of the fetus was conducted.
26. It was argued by the Ld. counsel for the accused that had the postmortem of the fetus been conducted, the real cause of its death could have been ascertained. It was also argued that the origin of the chemical could not be ascertained during the medical examination, therefore, it cannot be presumed that it was so administered. He further pointed out to the various complaints/statements/testimony of the complainant PW2 and argued that at some place she mentioned that some tablet/medicine was kept by her husband in her vagina and in other complaint she stated that some chemical was put into her vagina by her father in law and husband with the help of accused Kammo and, therefore, she herself was not certain as to what was administered and by whom.
27. Ld. counsel further argued that the Dr. who conducted the medical examination of the complainant was never examined and some other doctor was examined in her place.
28. It may be made clear first of all, that the division bench of the Hon'ble High Court of Delhi had passed directions for the trial court in Crl. M.(M) 2018/98 and Crl. Misc. 4010/98 vide order dated 11.8.00 that in case the doctor is not traceable at the last known address then in that eventuality, the trial court shall issue summons directing the Medical Superintendent to depute the record clerk who can identify the signatures of the Dr. on the MLC and in case the trial court requires the opinion of a Dr., then a trial court while issuing summon will indicate in the summon itself that opinion of the Dr. is also required in the court. In that case, the Medical Superintendent, besides deputing the record clerk will also depute a doctor of the specific discipline to give opinion on the basis of the notice. It may be mentioned here that a copy of this order was circulated amongst all the 13 judicial officers in Delhi.
29. Thus, the argument that the doctor who medically examined the complainant was not examined as a witness in court does not hold good in view of the above directions passed by the Hon'ble High Court of Delhi and the fact that the doctor who medically examined PW2 could not be traced at her last known address.
30. The testimony of PW8 and the medical records which are available on the judicial file coupled with the testimony of the complainant PW2 makes it abundantly clear that some material, either in the form of chemical or medicine was administered into the vagina of the complainant. It may be noted that the complainant was firstly admitted to the hospital on 17.1.00 with the alleged history of chemical administration and interference by the midwife. Despite that, no FIR was registered nor any complaint was made to the police. It was only after on 28.3.00, when she was examined by the doctor and there was a recurrence of the recto vaginal fistula coupled with intra uterine death of the fetus, the matter was reported to the police. It has also been opined by the Doctor that this fistula can occur as a result of chemical administration. Thus, there is direct co-relation between the administration of the chemical/medicine and the death of the fetus as also with the development of fistula which led to excess bleeding and passing of stool from the vagina of the complainant.
31. The argument of the Ld. counsel for the accused that the name of the chemical or medicine could not be ascertained is of no consequence once, the factum of administration of the said thing has been established. The failure to conduct any postmortem of the fetus has not weakened the prosecution case. It has come on record that when the complainant was admitted in the hospital for the second time, she was having sepsis which 14 could have been caused because of the chemical administration. Thus, whether the fetus died directly because of the chemical administration or because the complainant developed sepsis is irrelevant, once it has been proved on record that the chemical was administered into her vagina. There could not have been any other reason or intention of the accused in administering any chemical etc. in the vagina of the complainant except to cause miscarriage.
32. Ld. counsel for the accused further pointed out that PW2 in her cross examination deposed that her husband was willing for the second child and if that was so, why he would have like to cause the miscarriage. Once the acts of the accused as aforesaid have been proved on record the argument whether he wanted any second child or not is inconsequential. The bad intention can develop at any stage and even after the complainant conceived. Now the question is who all were responsible for this act.
33. It has already been discussed at length that PW1 and PW2 both have admitted that at the time of the alleged incident, the complainant was residing separately with her husband and her in laws i.e accused Shabir Ahmed and Shamim Bano were residing in another house. The Ld. counsel for the accused pointed out towards the contradictions appearing in the various statements of PW2. However, it may be noted that she was never confronted with any of her previous statements during her cross examination except a part of Ex.PW1/A when she denied to have stated to the police that her husband planted one tablet/medicine in her private parts. The other statements including the statement under Section 161 Cr.P.C have been proved on record and thus can be read in evidence.
34. In her first complaint dated 28.3.00, Ex.PW11/K she alleged that on 2.1.00, her husband Shahzad called Kammo dai who advised to take the 15 complainant to the hospital but her father in law Shabir Ahmed and the eunuch Chahat @ Jahan brought acid in a bottle and with the aid of Kammo, forcibly administered it into her vagina and she started bleeding. In her second complaint Ex.PW2/A, he only made allegations against her husband that he kept some tablet in her private parts in Jan. 2000. This statement is dated 29.3.00 i.e a day after the making of the first statement. The third statement under Section 161 Cr.P.C is dated 13.4.00 in which she made the allegations against her husband, the eunuch and Kammo alleging that they continuously administered something for three days into her private parts.
35. Her second statement under Section 161 Cr.P.C was recorded on 6.8.00 where she made the allegations against all the accused. Similarly, she also made allegations against all the accused before the SDM in her statement Ex.PW2/B dtd. 25.4.00.
36. Thus, a cumulative reading of all the statements and her testimony before the court where too she made allegations against all the accused, it becomes clear that the chemical or any other material which led to her miscarriage was administered into her private parts by accused Kammo @ Kiran who was working as a midwife. It is also clear that it was done so on the instructions of accused Shahzad and the eunuch Chahat @ Jhan. The name of the father in law Shabir Ahmed and mother in law Shamim Bano were introduced later on.
37. The testimony of DW1, DW2 and DW3 who were examined by the accused also confirms that accused Shabir Ahmed and Shamim Bano were residing separately from accused Shahzad and the complainant and that they were not on visiting terms with each other and were also not having any interference in the family matters of the complainant. Their testimony could not be challenged during the cross examination by the Ld. APP for the State.
16It is a settled law that the testimony of a defence witness stands on the same footing as that of the prosecution witnesses. The decision of the Hon'ble Apex court in State of Haryana Vs. Ram Singh, 2002(1) JCC 385 SC may be referred to and relied upon in this respect.
38. In view of the aforesaid, I am of the considered opinion that the prosecution has been able to prove its case beyond reasonable doubt against accused Shahzad and Kammo @ Kiran for the offence punishable under Section 313/34 IPC for voluntarily causing the complainant with a child to miscarry, without good faith and without her consent. Since accused Chahat @ Jahan has already expired, no observations are being made in her respect. Accordingly, the said accused are held guilty and are convicted for the said offence.
39. However, since the case against accused Shabir Ahmed and Shamim Bano could not be proved bound reasonable doubt, they are acquitted for the said offence as well. They are set at liberty. Their personal bond and surety bond are discharged.
(Announced in the open (SANJAY SHARMA)
court on 8.3.07) ADDL. SESSIONS JUDGE
KARKARDOOMA COURTS
DELHI.
17
IN THE COURT OF SHRI SANJAY SHARMA, ADDITIONAL
SESSIONS JUDGE, KARKARDOOMA COURTS, DELHI.
SC No.129/06
STATE VS. KAMOO @ KIRAN ETC.
FIR NO. 100/00
P.S. Seema Puri.
U/S:498-A/313/34 IPC
1. Kammo @ Kiran wife of Fateh Mohd.
R/o: F 60, Old Seema Puri,
Delhi.
2. Mohd. Sahzad son of Shabir Ahmed R/o: A 231,
Old Seema Puri, Delhi.
ORDER ON SENTENCE:
1. The convicts Shahzad and Kammo @ Kiran have been
held guilty and convicted for the offence punishable under Section 313/34 IPC vide judgment dated 8.3.07.
2. I have heard the Ld. APP for the State and Shri S.Iqbal Advocate and Shri Hare Ram Advocate for the convicts.
3. It was argued on behalf of the State that while accused Kammo @ Kiran was a midwife who was instrumental in putting the chemical in the vagina of the complainant being a midwife, the other convict Shahzad is the husband of the complainant and his role in the entire act is quite prominent and, therefore, none of them deserved any leniency.
4. On the other hand, it was argued by the Ld. counsel for the convict that convict Kammo @ Kiran is an aged lady with young 18 children and her husband is also not earning anything. It was further argued that she has clean antecedents and was never convicted in any other case. It was also argued that her role was that of a midwife and she acted only on the directions of the other co-accused and she had absolutely no intention whatsoever to commit the alleged act. Hence, prayer for leniency was made on her behalf.
5. It was contended on behalf of the other accused Shahzad that he is the husband of the complainant and their marriage still subsists and there is a five year old daughter born out of the said wedlock. It was thus argued that if a lenient view is taken, the possibility of their reunion can be explored. It was also argued that this convict Shahzad has clean antecedents and has regularly appeared before this court. Thus, it was argued that a lenient view be taken against him.
6. I have considered the mitigating and aggravating circumstances of the case. It is not a simple case where the miscarriage was caused to the complainant but it was so caused in such a drastic manner that the complainant had to undergo a great deal of ordeal and trauma and her physique also got severely damaged. She had to be operated upon several times for the fistula which developed into her rectovaginal track as a result of which, she started passing stool from her vagina. Thus her sufferings and pain can very well be understood.
7. I have considered the case of the convict Kammo @ Kiran. Undoubtedly, she was not related to the family of the other co- accused. However, she had a sense of responsibility while she acted as a midwife. She should have understood as to what all she was administering into the body of the complainant. However, despite that, considering her age and the fact that she is a lady with clean antecedents a lenient view is taken 19 and she is sentenced to undergo RI for three years and is also sentenced to pay a fine of Rs. 3,000/- and in default of payment of fine, she shall undergo SI for three months. An application for releasing the convict on probation was also moved on her behalf but in view of the aforesaid, no grounds made out for her releasing on probation. Hence, application is dismissed.
8. As regard convict Shahzad is concerned, he being the husband of the complainant was responsible for the well being and protection of his wife i.e the complainant. He had the moral duty to support his wife and to protect her, but on the contrary instead of becoming a saviour, he became responsible for the physical and mental trauma which the complainant had undergone apart from the loss of the child and that too in a very crude and inhumanly manner. When the protector becomes the destroyer, he cannot be expected to be dealt with leniency. Similar application for releasing the convict on probation was also moved on his behalf but in view of the aforesaid, no grounds made out for his releasing on probation. Hence, application is dismissed. In these circumstances, I hereby sentence convict Shahzad for RI for a period of 10 years with fine of Rs. 10,000/- and in default of payment of fine, he shall further undergo SI for 6 months.
9. Sentenced accordingly.
(Announced in the open (SANJAY SHARMA)
court on 12 .3.07) ADDL. SESSIONS JUDGE
KARKARDOOMA COURTS
DELHI.
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