Delhi District Court
State vs 1. Mahender Singh on 24 January, 2013
Sessions Case No. 391/1/11
FIR No. 773/01
State Vs 1. Mahender Singh
2. Dr. Shanta Kaul
Police Station Tilak Nagar
Under Section 498A/ 313 IPC
Convicted u/s 312 /34 IPC
24.01.2013
Pre: Ld. APP for the state.
Accused are on bail with counsel.
Ld. Counsel Mr. Anil Kr. Thakur, Adv. for accused Smt. Shanta Kaul.
Ld. Counsel Sh. O P Sharma for accused Mahender.
Sh.Yash Pal Jolly, Adv. along with complainant Smt. Tajender Kaur @
Sunita Aggarwal.
Arguments heard on the point of sentence. Vide separate order
placed along side in the file, convict persons namely accused Mahender is
released on probation of good conduct for two years and accused Dr.
Shanta Kaul is released on probation of good conduct for three months on
furnishing personal bond in the sum of Rs.25,000/ each with one surety in
the like amount each, subject to the conditions that 1)both accused
persons shall pay an amount of Rs.2 lacs to the complainant; and 2) that a
case pending u/s 420 / 495 IPC before the Court of Collate of Ms. Rashmi
Khajoor against complainant Tajender Kaur @ Sunita Aggarwal will be
withdrawn by accused Mahender. Amount Rs.2,00,000/ has been paid by
accused persons to the complainant vide cheque no.140788 dated
24.01.2013 drawn on IDBI Bank, New Delhi issued in the name of Sunita
Aggarwal. File be consigned to record room.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
1
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 391/1/11
FIR No. 773/01
State Vs 1. Mahender Singh
2. Dr. Shanta Kaul
Police Station Tilak Nagar
Under Section 498A/ 313 IPC
Convicted u/s 312 /34 IPC
ORDER ON THE POINT OF SENTENCE
24.01.2013
Pre: Ld. APP for the state.
Accused are on bail with counsel.
Ld. Counsel Mr. Anil Kr. Thakur, Adv. for accused Smt. Shanta
Kaul.
Ld. Counsel Sh. O P Sharma for accused Mahender.
Sh.Yash Pal Jolly, Adv. along with complainant Smt. Tajender
Kaur @ Sunita Aggarwal.
ld. APP submits that offence of such types are increasing day
by day. Ld. APP further submits that conviction of accused persons
for the offences u/s 312 is of very serious nature which affect the public
at large. Ld. APP again submits that accused persons have already
been acquitted for the offences u/s 313 IPC and 498A IPC. On these
grounds ld. APP submits that convict deserve maximum punishment.
Contrary to it, ld. Counsel O P Sharma for accused/ convict
2
Mahender submits that he has no parents. He is sole bread earner in
his family. He has only wife. He has no children. He is a government
servant. Ld. Counsel again submits that criminal antecedents of
accused are clear. On these grounds ld. counsel for convict prays for
taking lenient view at the time of awarding sentence.
Ld. Counsel Sh. Anil Thakur for accused Dr. Shanta Kaul
submits that she has good fame and name in the society. She is aged
about 63 years old. She has one daughter. Her husband is also a
doctor by profession. Ld. Counsel again submits that she is practising
for the last about 30 years. Ld. Counsel again submits that criminal
antecedents of accused are clear. On these grounds ld. counsel for
convict prays for taking lenient view at the time of awarding sentence.
I have heard the submissions of ld. counsel for the convict
persons and ld. APP as well. Keeping in view of the facts and
circumstances of the case and family background of convict I am of the
view that ends of justice will be met if convict persons namely accused
Mahender is released on probation of good conduct for two years
and accused Dr. Shanta Kaul is released on probation of good
conduct for three months on furnishing personal bond in the sum of
Rs.25,000/ each with one surety in the like amount each, subject to
the conditions that :
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1. both accused persons shall pay an amount of Rs.2 lacs to the
complainant; and
2. that a case pending u/s 420 / 495 IPC before the Court of Collate
of Ms. Rashmi Khajoor against complainant Tajender Kaur @
Sunita Aggarwal will be withdrawn by accused Mahender.
Accordingly, accused Mahender is released on
probation of good conduct for two years and
accused Dr. Shanta Kaul is released on probation of
good conduct for three months on furnishing personal
bond in the sum of Rs.25,000/ each with one surety in
the like amount each, subject to the conditions as
mentioned above.
Amount Rs.2,00,000/ has been paid by accused
persons to the complainant vide cheque no.140788
dated 24.01.2013 drawn on IDBI Bank, New Delhi
issued in the name of Sunita Aggarwal.
ANNOUNCED IN THE OPEN COURT
ON THIS 24.01.2013
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
4
773/01
State Vs Mahender etc
20.12.2012
Pre: ld. APP for the state.
Accused are on bail.
File perused.
Vide separate judgment announced in the open court and placed
along side in the file, accused persons namely Dr. Shanta Kaul and
accused Mahender are convicted for the offence punishable u/s 312 /
34 IPC. Accused Dr. Shanta Kaul is absolved for the offence 313
IPC IPC; and accused Mahender Singh is also absolved from
offences punishable u/s 498A and 313 IPC.
Now, case be fixed for arguments on order on sentence for
08.01.2013.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
5
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 391/1/11
Assigned to Sessions. 04.03.2011
Arguments heard on 01.12.2012
Date of order. 20.12.2012
FIR No. 773/01
State Vs 1. Mahender Singh s/o Late S.
Dayal Singh r/o 184 B, Madipur
Gaon, Janta Flats, Lal Quarter,
Delhi.
2. Dr. Shanta Kaul w/o Manohar
Narain Kaul r/o B4/ 24, Paschim
Vihar, Delhi.
3.Smt. Amrit Kaur
4.Smt. Narender Kaur
5.Smt. Surjeet Kaur (expired)
6.Smt. Gurcharan Kaur
(Accused no. 3 to 6 were released
vide court order dated 01.06.2011)
Police Station Tilak Nagar
Under Section 498A/ 313 IPC
JUDGEMENT
1. Briefly facts of the case are that present FIR was recorded against six accused persons namely 1.Mahender Singh (husband), 2.Smt. Amrit Kaur (sister in law), 3.Narinder Kaur (sisterinlaw), 4.Gucharan Kaur (sisterinlaw) and 5. Dr. Shanta Kaul (doctor). Accused Smt. Surjeet Kaur has expired and proceedings were directed to be abated against her vide court order dated 20.08.2008.
2. This case was registered on the basis of a handwritten complaint 6 dated 13.08.2001 of complainant Smt. Tajinder Kaur moved at CAW Cell, Nanak Pura, Delhi, wherein it has been alleged by the complainant that she got married with accused no.1 Mahender Singh on 19.12.2001 and prior to the marriage accused no.1 told his family members i.e. other accused persons that she was earlier married and had a girl child out of her first marriage and that dowry articles of her first marriage will be given to the accused persons in the marriage to which accused had agreed. But, just after 1015 days of marriage, accused persons started harassing her for dowry and for bringing of money i.e. Rs.2.5 lacs which was spent in the marriage. Accused persons asked her either to bring cash or buy house for them. It has also been alleged that her three sistersin laws and motherinlaw (now expired) also used to beat her and complainant was not provided food. They also did not allow her to meet her grand parents. It has also been alleged that after few months, when complainant was having three months' pregnancy, accused persons got her ultra sound done and it was found that it was a girl child due to which atrocities by the accused persons increased. Thereafter, her condition deteriorated but accused did not provide her any medical care and accused persons without the consent of the complainant got her abortion done and left her in her grand parents' house in unconscious state and when she regained her consciousness after 34 days, she received a threatening telephone call from her inlaws either to bring Rs.2.5 lacs or transfer 7 the house of her grandmother else she would be divorced.
3. The challan was filed u/s 498A/ 406/ 312/ 34 IPC. The marriage between the complainant and accused was declared null and void by the ld. ADJ Sh. T. S. Kashyap vide order dated 27.02.2007 on the ground that complainant was already married at the time when she had solemnized her marriage with accused no.1. The said order was challenged on behalf of the complainant by way of an appeal. The said appeal has also been dismissed and the order of nullity of marriage has been upheld by High Court of Delhi vide order dated 19.05.2004.
4. This case was committed by ld. MM vide order dated 28.02.2011 wherein it was observed that as per certified copy of High Court order dt. 19.05.2004 the marriage of complainant with accused no.1 is null and void. It has further been observed for the offence u/s 406 IPC that there is not even a single allegation in the entire complaint regarding entrustment of dowry articles to any of the accused persons or their non return on demand of the complainant. Thus, ld. MM observed that offence u/s 498A IPC and 406 IPC are not attracted in the present case. Ld. MM further observed with regard to offence u/s 312 IPC which provides punishment for causing miscarriage that in the present case complainant has specifically 8 stated in her complaint that she was forced to get an abortion done by the accused persons. Hence, ld. MM found that her abortion was got done without the consent of complainant and on finding a prima facie case for the offence u/s 313 IPC in place of section 312 IPC, this case was committed to the court of Sessions since, section 313 IPC is triable by the Court of Sessions.
5. Arguments on charge were heard at length in Sessions Court too. Having heard the arguments on charge, a detailed order on charge was passed vide order dated 01.06.2011 wherein no prima facie case was found against accused persons namely Smt. Amrit Kaur, Smt. Narinder Kaur and Smt.Gucharan Kaur for the offences u/s 498A, 406 and 313 IPC thus these accused persons were released. However, a prima facie case against the husband of complainant i.e. accused Mahender for the offence punishable u/s 498A IPC and 313 IPC was found and a prima facie case was also found against accused Dr. Shanta Kaul, who operated her without the consent of victim. Accordingly, charge was framed against accused persons namely Dr. Shanta Kaul for the offence punishable u/s 313 IPC and separate charge for the offence punishable u/s 498A and 313 IPC is also framed against accused Mahender Singh. Both accused persons do not plead guilty and claim trial.
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6. Thereafter, prosecution has examined witnesses namely PW1 Smt. Tajinder Kaur - complainant/ wife of accused Mahender Singh, PW2 Thakur Singh - Uncle (chacha) of complainant, PW3 Smt. Sukhvinder Kaur Aunt (chachi) of complainant, PW4 Insp. Indraj 0 Initial I.O. Of the case and PW5 Narender Pal Singh - Mediator (hostile on material points).
7. Having perused the testimonies of all the witnesses it has come on record that as per the deposition of PW2 Thakur Singh, complainant Smt. Tajinder Kaur @ Monu is his niece, being daughter of his elder brother namely Sardar Amar Singh (since deceased). On 09.12.2000, PW1 Ms. Tajinder Kaur was married with accused Mahender at Gurudwara Shri Guru Singh Sabha and marriage was solemnized on 09.12.2000. At the time of marriage PW1 Tajinder Kaur, informed that it is her 2nd marriage and she is having a child at that time and old dowry articles would be given in marriage. It was also second marriage of accused Mahender. It has also come on record from the depositions of prosecution witnesses that after 1520 days from the date of marriage, accused Mahender demanded Rs. 34 lacs and stated that he got married with PW1 Tajinder Kaur @ Monu thinking that PW2 Thakur Singh and PW3 Smt. Sukhvinder Kaur were not having any child at that time and the property of Thakur Singh and Sukhvinder Kaur would be given to 10 him/ accused Mahender Singh. When PW2 Thakur Singh refused to give the amount, accused Mahender pressurized PW2 Thakur Singh and PW3 Sukhvinder Kaur to give one floor of their house as they were not having any kid at that time and nothing was incurred in the marriage of PW1 Tajinder Kaur.
8. Further, perusal of the testimonies of witnesses it has come on record that PW2 Thakur Singh asked accused Mahender to keep PW1 Tajinder Kaur peacefully and happily for a period of 12 years and he would pay certain amount to the extent of Rs.50,000/ if any issue is born to Tajinder Kaur, but accused was not agree. It has also come on record that accused Mahender used to say that old furniture has been given in marriage and asked PW1 Tajinder Kaur to bring new furniture and cash amount and when PW1 Tajinder Kaur was not in a position to give new furniture and the cash amount, he gave beatings to her and even at that time she was carrying her pregnancy. On knowing the pregnancy of PW1 Smt. Tajinder Kaur, accused Mahender got conducted the ultrasound through his sister Amrit Kaur and it was revealed that she was carrying a female fetus. Thereafter, accused Mahender Singh along with his family members compelled Tajinder Kaur to get the pregnancy aborted otherwise he would not allow her to live along with him.
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9. Further, it has also come on record that PW1 Smt. Tajinder Kaur was taken at Dr. Kaul's Maternity Clinic situated at B4/124, Paschim Vihar, Delhi, by accused Mahender his family members on the pretext of medical checkup where signatures of Smt. Tajinder Kaur were obtained on some documents and abortion was conducted by Dr. Shanta Kaul on 18.05.2001 , without the consent of PW1 Tajinder Kaur. After the abortion, accused left PW1 Tajinder Kaur at the house of deceased Amar Singh, father of Tajinder Kaur at Vishnu Garden, even at that time accused was requested by PW2 Thakur Singh to keep PW1 Tajinder Kaur along with him but accused Mahender harped upon two demands i.e. amount of Rs.23 lacs or to get the share amount, out of the property of PW2 Thakur Singh.
10.It has also come on record that on 25.12.2001, PW1 Tajinder Kaur produced her marriage photograph before PW4 Insp. Inderaj who had taken the same into his possession through seizure memo Ex.PW1/I. On 06.02.2002, Smt. Tajinder Kaur gave two medical documents of Guru Gobind Singh Hospital and photocopy of the treatment, conducted by Dr. Shanta Kaul and PW4 Insp. Inderaj had taken these documents into his possession vide memo Ex.PW1/J. 12
11.The most of the material witnesses have been crossexamined. I have gone through their crossexamination also carefully. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. However, no material contradiction has come on record which may affect the case of the prosecution. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
Observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
12.Having concluding the prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. They pleaded that they are innocent and they have been falsely implicated in the case in hand. Accused S. Mahender Singh appeared in the court as DW1.
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13.On perusal of testimony of DW1 it has come on record that at the time of his marriage with Ms. Tajinder Kaur on 09.12.2000, he was told by her uncle Thakur Singh, Charan Singh, her aunt Sukhvinder Kaur and Tajinder Singh (Brother of Ms. Tajinder Kaur) and mediator Narender Pal that it was first marriage of Ms. Tajinder Kaur and it was also informed that since Ms. Tajinder Kaur has no her parents, so few old articles would only be given in the marriage. He agreed for the same. He further stated that on 30.04.2001, he came to know through photographs from her cupboard in which his wife/ complainant was shown with a child. He took that photograph at the residence of her uncle Thakur Singh and his wife Tajinder Kaur was present at her uncle's house at Hari Nagar. He asked regarding the relationship of the child with Tajinder Kaur but initially he did not say anything but when accused/ DW1 insisted, he stated that Ms. Tajinder Kaur was earlier married and the child depicted in the photograph Ex.PW1/DA, is her daughter from the first marriage. DW1 further stated that he filed a case against Ms. Tajinder Kaur regarding nullity of the marriage. Sardar Singh had given some documents and stated that these were the documents of her divorce from her first husband. He produced those documents before the concerned court. Photocopy of the 14 pages are collectively MarkA. He filed the petition for decree of nullity of marriage in the month of 14 May 2001 and a decree was given vide Ex.PW1/DB. The decree is now Ex.DW1/A. DW1 has also filed a cheating case against Ms. Tajinder Kaur and her family members vide complaint case No.1111/01. Accused persons were summoned in that case vide order of Ld. MM dt. 22.04.2002. the certified copy of which is now Ex.PWDW1/B. The case is still pending. DW1 filed certified copy of order sheet of that case including statements of the witnesses (running in 48 pages) are collectively Ex.DW1/C.
14.Later on DW1/ accused came to know in the year 2004 that Ms. Tajinder Kaur has filed divorce petition against her previous husband Hira Singh. Certified copy of the petition and order sheet (Running in 23 pages) are collectively Ex.DW1/D. Ms. Tajinder Kaur filed an appeal before Hon'ble High Court against decree of nullity which was dismissed by Hon'ble High Court. Certified copy of the same (running in 16 pages) are collectively Ex.DW1/E and certified copy of judgment is Ex.DW1/F.
15.DW1 further stated that on 17.05.2001, PW1 Ms. Tajinder Kaur was aborted at one doctor's clinic at Paschim Vihar. On 14.05.2001 and 16.05.2001, she herself went at the doctor's clinic and this fact was not in his knowledge. On 17.05.2001, he went at the doctor's clinic at Paschim Vihar and on the direction of Ms. Tajinder Kaur he put 15 signatures on the consent form. On 21.05.2001, he made a complaint to DCP, PS Rajouri Garden to the effect that Ms. Tajinder Kaur got herself aborted without his consent. I sent the copy of the same at the concerned PS and also at C.P., Delhi. The said application is already mark C, which bears my signatures at point A. Accused further stated that he never made any demand from Ms. Tajinder Kaur. She cheated him. This DW1 was crossexamined by ld. APP. In the crossexamination it has come on record that it was the 2nd marriage of accused too. He did not make any objection at the time of marriage when old and used one articles were given at the time of marriage. He denied the suggestion that he did not make any objection as he was aware that it was also second marriage of Smt. Tajinder Kaur or that household articles which were given in marriage were the used and old articles from the first marriage.
16.Thereafter, case was fixed for final arguments. During the course of arguments ld. APP argued and submitted that material witnesses in this case have correctly identified the accused persons as culprits. ld. APP submitted that abortion of PW1 was got done without her consent at the instance of accused Mahender Singh by accused Dr. Shanta Kaul. In this regard sufficient evidence has come on record. Ld. APP further argued and submitted that accused Mahender used 16 to harass PW1 on the issue of her second marriage and for not giving sufficient dowry articles in the marriage. Ld. APP further argued and submitted that as per the statement of the complainant, the victim was taken by her husband Mahender Singh along with his family members to the clinic of Dr. Shanta Kaul for the abortion which was conducted on 18.05.2001 against the consent of the victim. Ld. APP again submitted that it is categorically given in the supplementary challan as well as statements of the victim that she was forced for the termination of the pregnancy of 3 ½ months old female child. On these grounds ld. APP submitted that accused persons be convicted.
17.Contrary to it, ld. Counsel for accused persons argued and submitted that present case F.I.R. is counterblast to the Petition filed by accused No.1 which was filed on 25.05.2001 but complaint in C.A.W. Cell was given on 13.08.2001 when summons of Petition U/s 11 HMA of nullity were served and Complainant already appeared in that Petition and further more Mark 'C' complaint was also made. Ld. Counsel for accused further argued and submitted that there is no any other evidence except complaint which was a counterblast and no investigation at all was made by PW4 SI Indraj. Neither statement of any neighbour nor discovery of alleged ultrasound was at all made though admittedly Complainant is resident of Delhi by birth. 17 FIR is not proved in this case as no Duty Officer appeared. Ld. Counsel further submitted that other departure entries of IO and DD entry of Kayami Mukadama nor statement of any other patient or official or employee from Dr. Kaul's hospital or from the parental home of the Complainant i.e. of her brother or her grandmother is at all recorded. If Complainant was alleged serious, naturally neighbourers of her parental home shall ask her. But no investigation. Ld. Counsel for accused persons again submitted that because marriage is already declared nullity and Trial Court as well as Ld. A.P.P. before the Ld. Committal Court conceded that Section 498A and 406 not made out. but accused No.1 is charged with 498A.
18.ld. counsel for accused persons again argued and submitted that as per complaint, Complainant was forced for abortion. But this is not a case that abortion was forcefully done. This fact is admitted by the Complainant. She stated in her crossexamination that -" It is correct that I did not tell the doctors that abortion is to take place without my consent. It is correct that I had taken medical treatment from Guru Gobind Singh Hospital after abortion". In Guru Gobind Singh Hospital, Mark 'A' & 'B' and Seizure Memo PW1/G speaks that there is no complaint of abortion but in document Mark 'B' LMP is stated to be of 18.05.2001 though abortion was dated 17.05.2001. But she not disclosed even at the first opportunity before a Government Hospital that she was forced to get the abortion done.
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19.Ld. counsel for accused persons again submitted that alleged beatings and dowry demand is not proved at all by any documentary evidence, by any medical report or by any independent witness. However, PW2 Thakur Singh given a improved statement. He improved that accused Mahender Singh demanded from floor in the dowry. But this fact was not mentioned in his statement recorded U/s 161 Cr.P.C. which Ex.PW2/DA and was confronted with his statement and PW3 Sukhvinder Kaur completely failed to strength the prosecution case. Moreover, PW2 is very much clever because he stated in the crossexamination that he does not know regarding the birth of child to Tejender Kaur from her illicit relations with her Jija. He also stated that he cannot give the date of third marriage of Complainant solemnized in Faridabad. He failed to give even date or other particulars regarding that fact but he has not denied the factum that real sister of Complainant lodged a complaint in the police station and a male child was delivered by Tejender Kaur from loin of Rajender, her Jija. This conduct shows that Tejender Kaur as well as her uncle have cleverly given the statement which is far away from the Truth.
20.Ld. counsel for accused persons again submitted that perusal of DW1/D, Petition for divorce with Hira Singh also shows that, that petition was not with mutual consent but the same was U/s 13(ia) 19 and (ib) HMA i.e. of cruelty and desertion. Similarly, marriage with Mahinder Singh was with intention to extort money. Because after nullity of marriage and prior to solemnization of third marriage, she indulged in illicit relations with her Jija and prime proof is the delivery of a child which is not at all denied. This conduct shows that how Complainant is clever and cunning lady.
21.Ld. counsel again argued and submitted that statement of her earlier husband Hira Singh is produced in defence vide certified copy of the same, which was recorded in the case of cheating which is against the Complainant and in that statement, Hira Singh stated that during the stay with him, Complainant was very cruel and thereafter they never obtained divorce from court but a Panchayati Talaq was done. This statement also falsify the statement of the Complainant.
22.ld. counsel for the accused persons further argued and submitted that whole circumstances of the case at a one glance shows that a lady who is resident of Delhi by birth who taken the education in Delhi and married second time in Delhi, how she was not aware regarding the place where alleged ultrasound was conducted. Because story was false, hence there was no documentary evidence which was the base of the allegation. Allegations of complainant that she remained unconscious for 2/3 days are false itself because for abortion, doctor never give anesthesia of high power on a 20 particular part and after abortion, patient could herself come on foot and may go alone to her house by walking and there is no need of any bed rest and in case if anything was happened, why she failed to report to the police or at 100 number immediate after or after 2/3 days despite the fact that her uncle and aunty also visited and her brother and grandmother were already present in the house.
23.Ld. counsel again submitted that present case cannot be finally decided until the connected case filed by the Accused Mahinder Singh against Complainant party is not matured and simultaneously decided, otherwise, accused shall be prejudiced with his legal rights.
24.Ld. counsel for accused persons further submitted that Complainant does not fall under category of wife and reference may be taken judgment Reema Aggarwal Versus Anupam AIR 2004 Supreme Court 1418 (2004), SCC, 199 and Judgment reported in 2011, 4, JCC, 2932, Delhi High Court. Reference from 2005(2), Criminal Ruling, 387(Patna) and 2004 Criminal Law Journal, 1974, Karnataka High Court, held that a lady who solemnized the marriage at the stage when her spouse was alive but marriage is void and she does not come under category of wife and not entitled for 498A.
25.Ld. counsel again argued and submitted that there are so many 21 contradictions on the basis of which there is no proof at all in support of the prosecution case and prosecution failed to prove the guilt of the accused persons. It is also an accepted rule that in case the court entertain reasonable doubt regarding the guilt of the Accused, the Accused must have the benefit of that doubt. The rule regarding the benefit of doubt also does not warrant acquittal of the Accused by resort to surmises conjecture and fanciful consideration. It is no doubt true that wrongful acquittals are undesirables and shake the confidence of the people in the judicial system, much worse however is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberation cannot but be felt in a civilized society. This matter is registered as a counter blast to the proceedings initiated much before by the Applicant for declaration of marriage as a nullity and that was subsequently confirmed. Hence in this case accused persons are entitled for acquittal.
26.Before reaching at any conclusion let the relevant sections be re produced verbatim which are as under: "498A. Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.For the purpose of this section, "cruelty" means
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause 22 grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any properly or valuable security or is on account of failure by her or any person related to her to meet such demand.]
312. Causing miscarriage.Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.A woman who causes herself to miscarry, is within the meaning of section.
313. Causing miscarriage without woman's consent.Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 11[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
315. Act done with intent to prevent child being born alive or to cause it to die after birth.Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and docs by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.'
27.Having gone through the whole case and material available on record. From the testimony of most material witnesses it has come on record that on 09.12.2000, PW1 Ms. Tajinder Kaur married with accused Mahender at Gurudwara Shri Guru Singh Sabha. At the time of marriage PW1 Tajinder Kaur, informed that it is her 2 nd marriage and she is having a child at that time and old dowry 23 articles would be given in marriage. It has also come on record vide deposition of PW1 Tajinder Kaur that after 1520 days from the date of marriage, accused Mahender demanded Rs. 34 lacs and when PW2 Thakur Singh refused to give the amount, accused Mahender pressurized PW2 Thakur Singh and PW3 Sukhvinder Kaur (parents of PW1) to give one floor of their house as they were not having any kid at that time and nothing was incurred in the marriage of PW1 Tajinder Kaur. It has come on record that PW2 Thakur Singh asked accused Mahender to keep PW1 Tajinder Kaur peacefully and happily for a period of 12 years and he would pay certain amount to the extent of Rs.50,000/ if any issue is born to Tajinder Kaur, but accused was not agree. It has also come on record that accused Mahender used to say that old furniture has been given in marriage and asked PW1 Tajinder Kaur to bring new furniture and cash amount and when PW1 Tajinder Kaur did not fulfill his demands, he gave beatings to her while at that time she was pregnant. On knowing the pregnancy of PW1 Smt. Tajinder Kaur, accused Mahender got conducted the ultrasound through his sister Amrit Kaur and it was revealed that she was carrying a female fetus.
Thereafter, accused Mahender Singh along with his family members compelled Tajinder Kaur to get the pregnancy aborted otherwise he would not allow her to live along with him. PW1 Smt. Tajinder Kaur was taken at Dr. Kaul's Maternity Clinic situated at B4/124, 24 Paschim Vihar, Delhi, by accused Mahender and his family members on the pretext of some medical checkups where signatures of Smt. Tajinder Kaur were obtained on some documents and abortion was conducted by Dr. Shanta Kaul , on 18.05.2001 without the consent of PW1 Tajinder Kaur. After the abortion, accused left PW1 Tajinder Kaur at the house of deceased Amar Singh, father of Tajinder Kaur at Vishnu Garden, even at that time accused was requested by PW2 Thakur Singh to keep PW1 Tajinder Kaur along with him but accused Mahender harped upon two demands i.e. amount of Rs.23 lacs or to get the share amount, out of the property of PW2 Thakur Singh. On 25.12.2001, PW1 Tajinder Kaur produced her marriage photographs before I.O. i.e. PW4 Insp. Inderaj who took the same into his possession vide seizure memo Ex.PW1/I. On 06.02.2002, Smt. Tajinder Kaur gave two medical documents of Guru Gobind Singh Hospital and photocopy of the treatment, conducted by Dr. Shanta Kaul to PW4 Insp. Inderaj, who took these documents into his possession vide memo Ex.PW1/J.
28.Since, it has already come on record that marriage between the complainant and accused Mahender was declared null and void by the ld. ADJ Sh. T. S. Kashyap vide order dated 27.02.2007 on the ground that complainant was already married at the time when she had solemnized her marriage with accused no.1. The said 25 order was challenged on behalf of the complainant by way of an appeal. The said appeal has also been dismissed and the order of nullity of marriage has been upheld by High Court of Delhi vide order dated 19.05.2004. In light of these facts and circumstances and judgments 'Reema Aggarwal Versus Anupam AIR 2004 Supreme Court 1418 (2004), SCC, 199 and Judgment reported in 2011, 4, JCC, 2932, Delhi High Court. Reference from 2005(2), Criminal Ruling, 387(Patna) and 2004 Criminal Law Journal, 1974, Karnataka High Court, I am also of the firm view that prosecution has failed to prove its case for the offence u/s 498A IPC against accused Mahender beyond reasonable doubt.
29.It is the fundamental principle of criminal law that in case of conviction of accused the prosecution is required to prove the guilt of accused beyond reasonable doubt. Hon'ble Supreme Court on this point has observed in a case titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that: "'Reasonable doubt' is one which occurs to a prudent and reasonable man The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or nonexistence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time 26 contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'."
30.So long as the offence u/s 313 IPC is concerned, it requires that miscarriage should be done without woman's consent whether the woman is quick with child or not. In this regard, testimony of PW1 Tajinder Kaur is very crucial, who in her testimony has categorically stated that she was taken at Dr. Kaul's Maternity Clinic situated at B4/124, Paschim Vihar, Delhi, by accused Mahender and his family members on the pretext of medical checkup where signatures of Smt. Tajinder Kaur were obtained on some documents and abortion was conducted by Dr. Shanta Kaul on 18.05.2001 , without her consent . This part of evidence goes to the root of this case. PW1 herself admitted that she has signed some documents and perusal of the Consent Form Ex.PW1/D4 of Dr. Kaul's maternity hospital it appears that it bears the signature of PW1 Tajinder Kaur, complainant at point A in English language on Ex.PW1/D4. Dr. Kaul's Maternity situated at B4/24, Paschim Vihar, New Delhi - 63 is government approved MTP Centre. In these facts and circumstances, questions arises that if her abortion was conducted without her consent as to why she or her parents did 27 not make any complaint promptly before any authority. Further, perusal of the case file it reveals that Ex.PW1/D1 i.e. page from the Diary dated 14.05.2001 whereby Complainant/ PW1 Tajinder Kaur herself went to Dr. Kaul clinic and stated his last menstrual period dated 18.03.2001 and reason of abortion was stated herself by Complainant "for limiting to one child". The Ex.PW1/D2 i.e. page from the diary of Dr. Kaul dated 16.05.2001 wherein reason of abortion was given by her was failure contraceptive (condom). The Ex.PW1/D3 i.e. Page from the diary of Dr. Kaul dated 17.05.2001 in which complainant has given consent in which two months pregnancy is stated and patient is clinically fit. Besides, at the first time complaint was made by PW1 complainant on 13.08.2011 meaning thereby that it filed after about 3 months after termination of the pregnancy on 18.05.2001. Thereafter, an FIR was got registered on 08.12.2001. Besides, there is no any other documentary evidence except complaint which appears to be a counterblast. Neither statement of any neighbour nor discovery of alleged ultrasound was made though admittedly Complainant is resident of Delhi by birth. In Guru Gobind Singh Hospital vide documents Mark 'A' & 'B' and Seizure Memo PW1/G indicates that there is no complaint of abortion but in document Mark 'B' LMP is stated to be of 18.05.2001 though abortion was dated 17.05.2001. But she did not disclosed even at the first opportunity before a 28 Government Hospital that she was forced to get the abortion done. This sequence of events reflects that the termination of pregnancy is impacted by the consent of PW1 Tajinder Kaur, again precisely for the reasons that she has been found putting her signature on the requisite consent form dated 17.05.2001 vide Ex.PW1/D4 and the signature has been made in English language by the complainant which shows that the complainant was capable to understand the consequence of her act and deeds. In light of these discussed facts and circumstances of the case I am of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against accused persons for the offence punishable u/s 498A IPC and 313/ 34 IPC for the reasons discussed in the preceding paras.
31.The Section 3 of the Medical Termination of Pregnancy Act, 1971 is being reproduced verbatim which is as under:
3.When pregnancies may be terminated by registered medical practitioners - (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of subaction (4), a pregnancy may be terminated by a registered medical practitioner,
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, or
(ii) there is a substantial risk that if the child were 29 born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation 1. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2. Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in subsection (2), account may be taken to the pregnant woman's actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or , who having attained the age of eighteen years, is a [mentally ill person', shall be terminated except with the consent in writing of her guardian.
(b) Save as other wise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
1. In the case in hand it has categorically come on record vide deposition of PW1 Tajinder Kaur that voluntarily her abortion was got done at the clinic of Dr. Shanta Kaul on 18.05.2001 after having came to know that complainant has conceived female fetus. It is also an admitted fact from both sides that abortion was done vide Consent Form Ex.PW1/D4. The fact of consent given by PW1 Tajinder Kaur, complainant for abortion has already been discussed at length in the preceding para 30, which shows that her consent appears to have been impacted by some involuntarily elements as she was under the dominance of accused Mahender Singh and his 30 family members. So long as the role of Dr. Shanta Kaul is concerned, in this regard section 3 of the Medical Termination of Pregnancy Act empowers the registered medical practitioners to cause pregnancy terminated in provisions of this Act. In this regard section 3 of the Act as mentioned above reveals that subject to the provisions of subaction (4), a pregnancy may be terminated by a registered medical practitioner, a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks. As per deposition of PW1 complainant Smt. Tajinder Kaur it has come on record that pregnancy of female fetus was of 8 weeks and this fact of 8 weeks is not affected therefore, consent of the PW1 was required but in the cross examination it has come on record that consent of PW1 appears to have been impacted by some external affairs as she was in the dominance of her husband accused Mahender Singh and his family members. Besides, on perusal of the case file it reveals that vide Ex.PW1/D1 i.e. page from the Diary dated 14.05.2001 whereby Complainant/ PW1 Tajinder Kaur herself went to Dr. Kaul clinic and stated his last menstrual period dated 18.03.2001 and reason of abortion was stated herself by Complainant "for limiting to one child". The Ex.PW1/D2 i.e. page from the diary of Dr. Kaul dated 16.05.2001 wherein reason of abortion was given by her was failure 31 contraceptive (condom). The Ex.PW1/D3 i.e. Page from the diary of Dr. Kaul dated 17.05.2001 in which complainant has given consent in which two months pregnancy is stated and patient is clinically fit. All these facts and circumstances go to the root of this case that to terminate the female fetus accused Mahender got done abortion of complainant PW1 Tajinder Kaur at the clinic of accused Dr. Shanta Kaul on 18.05.2001 and the consent given by PW1 Tajinder Kaur does not appear voluntarily. Presuming for the sake of argument that the termination took place on account of consent given by PW 1 victim complainant Smt. Tajinder Kaur but nothing has come on record which goes to suggest that continuance of the pregnancy would involve any risk to the life of PW1 Tajinder Kaur or of grave injury to her physical or mental health. Besides, there is no substantial risk that if the child born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. The plea taken by the ld. Counsel for accused persons that abortion was got done in accordance with Medical Termination of Pregnancy Act, 1971, does not come to the rescue of the accused persons precisely for the reasons that her consent for termination of pregnancy does not appear voluntarily vide deposition of PW1 Tajinder Kaur, complainant. Apart from this even with the consent of complainant the offence of termination of pregnancy is completed unless some risk of life or danger to life of child is involved. In light 32 of these facts and circumstances, it can easily be inferred that an abortion of PW1 Tajinder Kaur was got done by accused Mahender at the clinic of Dr. Shanta Kaul on 18.05.2001 and this miscarriage has been caused in absence of good faith of PW1 Tajinder Kaur. Therefore, in absence of clear cut consent or with the consent unless danger to life and to a child is on record, the offence u/s 312 IPC is proved beyond reasonable doubt against both the accused persons.
Accordingly, accused persons namely Dr. Shanta Kaul and accused Mahender are convicted for the offence punishable u/s 312 / 34 IPC.
accused Dr. Shanta Kaul is absolved for the offence 313 IPC IPC; and accused Mahender Singh is also absolved from offences punishable u/s 498A and 313 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 20.12.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 33