Delhi District Court
State vs . 1. Lalit Balhara, on 30 July, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 158/11.
Unique Case ID No.02405R0385082009.
State Vs. 1. Lalit Balhara,
S/o Sh. Dalbir Singh,
R/o D/2/75, Janakpuri,
New Delhi.
2. Preeti Balhara,
W/o Sh. Lalit Balhara,
R/o D/2/75, Janakpuri,
New Delhi.
Date of Institution : 31.10.2009.
FIR No.77 dated 02.3.2005.
U/s. 307/34 IPC.
P.S. Delhi Cantt.
Date of reserving judgment/Order : 12.7.2012.
Date of pronouncement : 30.7.2012.
JUDGMENT
1. This case unfolds the tragic and horrifying story of a minor child 'Shourya' who had suffered multiple fractures all over his body besides injuries on his head, face etc. during his years of infancy. The prosecution alleges that it is a case of baby battering and the child has been severely beaten, tortured and left to starve by the two accused with an intention to do away with him.
2. The child Shourya, hereinafter referred to as 'victim', is the son of accused Lalit from his earlier marriage with Capt. SC No.158/11. Page 1 of 29 Meenakshi. Both were serving in Indian Army and tied the knot on 26.09.97. Victim child was born from the wedlock on 11.01.99. As ill luck would have it, Capt. Meenakshi expired on 07.12.2000 after a brief illness. Accused Lalit kept the custody of the victim child. He, then, got married to accused Preeti in April, 2002. This was second marriage of accused Preeti also as her first husband Major Sanjay Lochab had expired. She has a daughter Lavnika, from her first marriage.
3. The plight of the victim child was brought to light by his maternal grandfather Lt. Col. P.L. Verma by way of a Habeas Corpus writ petition bearing W.P. (Crl.) No.173/2005 filed in the Delhi High Court impleading the two accused as respondent nos.4 and 5 therein and alleging that they have been inflicting severe physical and mental torture upon the victim and he was not being permitted to see or meet the child despite repeated entreaties. It was further alleged in the writ petition that Lt. Col. P.L. Verma received an anonymous telephonic call on 06.01.05 from a lady at Jaipur stating that life of his grandson (victim child) was in danger and he should take steps to save him. The caller also told Lt. Col. Verma that the child was brought by accused Lalit to R&R Hospital in December, 2003 with multiple fractures and a police case was lodged by the Hospital authorities. The caller further disclosed that Dr. Lt. Col. R.G. Holla, who had treated the child, refused to give his custody back to accused and insisted that he would handover the child to his maternal grandparents but he had to give the custody of the child to the parents of the accused Lalit as they impersonated as the maternal grandparents of the child. Thereafter, on a visit to the Hospital and on inspection of the SC No.158/11. Page 2 of 29 Hospital records, the writ petitioner Lt. Col. Verma was shocked to find that his grandson had been subjected to immense physical torture and injuries. He found that his grandson was admitted to the Army Hospital for the first time on 25.4.2002 for ingestion of insecticide - Aluminum Phosphide and the doctor suspected a case of attempted poisoning of the child in order to eliminate him and a medico legal case was filed and registered in P.S. Delhi Cantt. He also found that the child was again brought to the hospital in October, 2002 for having consumed some unknown ayurvedic medicine and with a head injury resulting into paralysis of right side of the body. The child, this time, was kept in intensive care unit and was on the list of dangerous ill patient. The child had been again admitted to the hospital for the third time on 08.1.2004 with multiple injuries and fracture of his left foot, leg, right arm, hip and ribs and the fractures were diagnosed as non accidental by the doctor. Dr. R.J. Holla had categorized injuries suffered by the child as "Battered Baby Syndrome" and refused to handover his custody to the accused herein. Again a medico legal case was registered and the investigation was started. Lt. Col. Verma also visited the house of the accused to see the child but the house was locked and no one was arrested. On inquiries from the neighbours, he came to know that most of them were not even aware about the existence of the minor child. The children in the neighbourhood had not seen the child or even played with him.
4. The High Court examined the child and also called for and perused the report of Lt. Col. R.G. Holla regarding the medical condition of the child. Lt. Col. Holla also appeared before the High SC No.158/11. Page 3 of 29 Court and explained to the Hon'ble Judges various parameters regarding the physical and mental condition of Master Shourya. Acting on the report of Lt. Col. Holla, the High Court directed that the custody of the victim be handed over to his maternal grandparents and also directed registration of FIR on the basis of the said report. This was done by the High Court vide order dated 28.02.05 passed in the aforesaid writ petition.
5. Pursuant to the aforesaid order of the High Court, Lt. Col. P.L. Verma, the grandfather of the child lodged a complaint dated 28.02.05 in P.S. Delhi Cantt., on the basis of which FIR has been registered in this case. The investigation of the case was entrusted to SI Sunil Kumar. During the course of investigation, SI Sunil Kumar made inquiries for RR Hospital and also seized the report of Dr. Holla. He recorded the statement of the child in RR Hospital on 07.05.05 in the presence of his guardian. The maternal grandmother of the child refused to produce the child before the concerned M.M. for recording of his statement u/s.164 Cr.PC. Meanwhile, on an application filed in this behalf by accused Lalit, the High Court directed constitution of a Medical Board for medical examination of the child. Accordingly a Medical Board was constituted for the said purpose in G.B. Pant Hospital, Delhi, and the child was to be examined by the Board on 21.07.05 but his grandparents did not produce him before the Board. Thereafter, SI Sunil Kumar was transferred for the police station and further investigation of the case was entrusted to SI Vidyadhar.
6. SI Vidyadhar recorded the statements of witnesses Lt.
SC No.158/11. Page 4 of 29Col. K.M. Upadhayay, his wife Mrs. Sunita and Col. Deepak Gupta at Mhow, M.P. and submitted a report to the High Court. The High Court again directed examination of the child by an independent Medical Board. Accordingly, the child was examined by a Medical Board at AIIMS, New Delhi, and the last meeting of the Board took place on 10.02.06. Meanwhile, investigation of the case had come in the hands of SI Pyare Lal, who obtained a copy of the report of the Medical Board. The Board had concluded that multiple injuries of the child were non-accidental. Multiple bone fractures at different stages of beating alongwith subdural haematoma, black eye bruises, in the absence of plausible explanation of the cause of child's injuries were suggestive of diagnosis of Battered Baby Syndrome with emotional deprivation and malnutrition.
7. By that time, another investigating officer Insp. P.S. Punia had come into picture, who made search for the accused but could not find them. He came to know from the Army Headquarters that accused Lalit had taken voluntary retirement on 29.10.06 and his permanent address to be House No.3036, Sector 35-D, Chandigarh. Accused could not be found at the aforesaid address also. Inspector Punia, then obtained the passport details of the accused from the office of FRRO, New Delhi, which revealed that they gone abroad several times between the years 2005 and 2008. Search for the accused was also made at the address 188L, Model Town, Rohtak, Haryana, mentioned in the passport but they were not found there too. LOC was issued against the two accused. Since the accused could not be arrested despite intensive search, Charge Sheet was filed in February, 2009 without arresting them.
SC No.158/11. Page 5 of 298. The accused are stated to have surrendered before the court on 10.11.09 and were formally arrested as they had obtained interim protection from arrest from the High Court.
9. After the surrender of the accused before the concerned Magistrate, the case was committed to the court of Sessions by the Ld. Magistrate. Following charges were framed against the two accused by my Ld. Predecessor on 16.02.2010 :
"That you both in furtherance of your common intention inflicted intentionally and with knowledge such bodily and mental injuries on the person of master Shourya Balhara, S/o Sh. Lalit Balhara during the period from year 2001 to February, 2005 in such manner and ways that had it caused his death, it would have amounted to murder, you both thereby attempted to kill him in furtherance of your common intention and you thereby committed an offence punishable under Section 307 and with Section 34 IPC, and within my cognizance.
Secondly, you both in furtherance of your common intention during the aforesaid period did not provide the requisite care and protection to the said victim Shourya and thereby you both committed an offence punishable under Section 23 of the Juvenile Justice Act read with Section 34 IPC, and within my cognizance."
10. The prosecution examined following 28 witnesses to being home the guilt of the accused :
(1) PW1 - Master Shourya, the victim child. (2) PW2 - Sh. Pyare Lal Verma, the maternal grandfather SC No.158/11. Page 6 of 29 of the victim child.
(3) PW3 - Sh. Devender, maternal uncle of victim child. (4) PW4 - Smt. Savitri, the maternal grandmother of victim child.
(5) PW5 - Dr. D.K. Gupta, member of the Medical Board constituted in AIIMS for medical examination of the victim child.
(6) PW6 - HC Om Prakash, the Duty Officer at P.S. Delhi Cantt., who had registered the FIR.
(7) PW7- SI Ram Singh, who had recorded the statement of the victim child in R&R Hospital, New Delhi, on 10.1.2004.
(8) PW8 - Sh. Anil Choudhary, the brother of Major Sanjay Lochab.
(9) PW9 - Smt. Vimla Devi, the mother of Majob Sanjay Lochab.
(10) PW10 - Sh. Anil Kumar, Junior Judicial Assistant from High Court of Delhi, who had come with the record of writ petition (Crl.) No.173/05. (11) PW11 - Sh. Naik Mulik VM from Army Hospital, R&R, Delhi Cantt., alongwith MLCs of the victim child. (12) PW12 - Dr. Sanjeev Lalwani, member of the Medical Board constituted in AIIMS for medical examination of the victim child.
(13) PW13 - Dr. Ashu Seth, member of the Medical Board constituted in AIIMS for medical examination of the victim child.
(14) PW14 - Dr. Manju Mehta, member of the Medical Board constituted in AIIMS for medical examination of SC No.158/11. Page 7 of 29 the victim child.
(15) PW15 - Dr. S.S. Minhas, who had examined the victim child in Army Hospital, Delhi Cantt. on 08.1.2004 vide MLC Ex.PW11/A. (16) PW16 - Sh. Yashpal, Ahlmad from the court of Sh.
Gautam Manan, then Guardianship Judge.
(17) PW17 - Sh. Vijay Singh Lochab, the brother of Major Sanjay Lochab.
(18) PW18 - SI Vidyadhar.
(19) PW19 - Dr. R.G. Holla, who had examined the victim child and had given report regarding his medical condition.
(20) PW20 - Dr. Veena Kalra, the Chairperson of the Medical Board constituted in AIIMS, for medical examination of the victim child.
(21) PW21 - Dr. Arun Kumar Gupta, member of the Medical Board constituted in AIIMS for medical examination of the victim child.
(22) PW22 - Dr. Pankaj Hari, member of the Medical Board constituted in AIIMS for medical examination of the victim child.
(23) PW23 - Col. Ritu Lakhtakia, who had examined the victim child in Army Hospital, Delhi Cantt. on 25.4.2002.
(24) PW24 - SI Shiv Charan.
(25) PW25 - SI Sunil Kumar.
(26) PW26 - Inspector Pyare Lal.
(27) PW27 - Inspector P.S. Punia.
(28) PW28 - SI Mohd. Yasin Khan.
SC No.158/11. Page 8 of 2911. The accused in their statements u/s.313 Cr.PC vehemently denied that they inflicted any physical or mental torture upon the victim child. They denied all the incriminating facts and circumstances put to them. Accused Lalit further stated that he has been falsely implicated in this case by his earlier father-in-law Lt. Col. P.L. Verma (complainant). According to him, Lt. Col. Verma wanted him to marry his younger daughter, after the death of Capt. Meenakshi, and to get all his pensionary benefits as Master Shourya was a special child and would remain so throughout his life. When the accused Lalit rejected the aforesaid marriage proposal, Lt. Col. Verma got miffed and initiated the present criminal proceedings.
12. The accused examined six witnesses to prove their innocence. They include the neighbours of the accused and the daughter of accused Preeti from her previous marriage.
13. I have heard Ld. APP for the State, Ld. Counsel for the accused and have perused the entire record.
14. It was submitted by the Ld. APP for State that the victim child had been brutally beaten and battered by his own natural father accused Lalit Balhara. He also submitted that the evidence on record shows that the victim child was often kept locked in a room and left to starve. He was treated like an animal and not like a human child. He submitted that the inhuman and torturous act of the accused reflect their intention that they did not want to see the victim child alive and intended to kill him.
SC No.158/11. Page 9 of 29According to him, the prosecution has been successful in establishing the charges against the two accused and they are liable to be convicted.
15. Per Contra, Ld. Counsel for the accused submitted that the prosecution has miserably failed to prove the guilt of the accused. He submitted that the report and testimony of Dr. R.G. Holla cannot be believed as he had been acting at the behest of the complainant Lt. Col. P.L. Verma and has given a false report. He also submitted that no reliance can be placed upon the report Mark PW12/A of the Medical Board constituted for the medical examination of the child at AIIMS as the same has not been proved in accordance with law. He submitted that the original report has not been brought on record and only photocopy of the same has been shown to the witnesses which is against the law. According to him, there is no evidence on record to suggest that the accused had been inflicting any sort of cruel treatment or torture upon the victim child. He further submitted that the accused took proper care of the victim child which is borne out from the testimony of the defence witnesses, which were residing as neighbours to the accused and had been seeing the victim child off and on. According to the Ld. Counsel, the accused are liable to be acquitted.
16. It is not in dispute that the victim child had suffered multiple fractures on his body in the years of his infancy and had to be hospitalized on various occasions. He was treated in R&R Hospital, Delhi Cantt., New Delhi. It is the contention put forward on behalf of the accused that the child was forcep baby and had SC No.158/11. Page 10 of 29 difficulty in rising up or walking properly, as a result of which he fell to the ground again and again and suffered injuries including fractures. To the contrary, the case of the prosecution is that the fractures were suffered by the victim on account of continuous intense beating and battering by the two accused.
17. The nature of injury suffered by the victim and their real cause can be gathered upon a close scrutiny of the report of Dr. R.G. Holla and the report of the doctors constituting to Medical Board of AIIMS as well as their testimonies recorded in this court.
18. Dr. Lt. Col. R.G. Holla has been examined as PW19. According to him, he was working as Classified Specialist, Paediatrics and Neonatology in Army Hospital, Research & Referral, Delhi Cantt., from August, 2000 to January, 2007. He had examined the victim and gave his report as Ex.PW19/A. He had taken photographs of the victim also which forms part of the report and are Ex.PW19/B collectively. He also proved the MLC of the victim dated 08.1.2004 as Ex.PW11/A saying that it is in his handwriting. The findings arrived at by the witness after analyzing the prescription, CT Scan and X-ray report, Discharged Summary and EEG report of the victim are as under :
"25.3.2002:
Master Shaurya Balhara, aged 3 yrs. 3 months was admitted to Army Hospital (R&R) with history of having ingested three tablets of insecticide used for preservation of rice. The child, at the time of admission, was fully conscious. No history was forthcoming as to how the child ingested the tables. The child was given a stomach wash, observed for a period of one day (upto 1800 hrs of 26 Apr 02) and SC No.158/11. Page 11 of 29 discharged.
Medico legal Case was initiated (No 17.4.02) June 2002 :
Master Shaurya was brought to the Pediatric OPD, AHRR by Mrs. Preeti Balhara with history that the child's speech was not normal and that he was unable to speak as expected of a 3 years old child. At that time, Mrs. Preeti Balhara showed me the reports related to the child's birth and investigations done at that time. Mrs. Preeti Balhara felt that the delayed speech was related to events that occurred at the time of the child's birth.
I interviewed and examined the child and perused the documents related to the child's birth. Clinical examination did not reveal any gross abnormality in the child's neurodevelopmental status. In view of the birth history, a CT scan of the child's brain was ordered (dated 06 Jun 02). Based on the findings of the examination and CT scan, the child was adjudged to be normal and Mrs. Preeti Balhara was counselled accordingly.
01 Oct 02 :
Master Shaurya Balhara was admitted to AHRR on 01 Oct 02 with a history of having had generalized seizures following a fall from the chair. During the period of hospitalization, the child had four seizures and had hemiplegia (weakness) of the left half of the body. At that stage, a CT scan was done (at AHRR on 03 Oct 02: report not available) which showed the presence of a chronic subdural hematoma. An MRI scan was done which revealed bilateral hemorrhages in the brain (late subacute left cerebellar and right cerebral hemispheric subdural hematomas with late subacute right high frontoparietal gyriform hemorrhages) (dated 12 Oct 02, MRI report attached, film not available). A skeletal survey was done which showed a suspicion of an old injury to the left femoral epiphysis. X-ray of the skull was normal. The coagulation studies of the child were normal. The child was put on anticonvulsant medications (Dilantin).SC No.158/11. Page 12 of 29
Opinion of Senior Adviser (Pediatrics), Base Hospital, Delhi, was also taken regarding the child's management. The child was discharged on 14 Oct 02.
12 Mar 03 :
Master Shaurya Balhara was brought to the casualty of AHRR with history of having had a convulsion at home on 12 Mar 03. The child was examined by me and found to have fully recovered from the convulsion. He was fully conscious, cooperative and oriented. The child was observed for a period for two hours and then sent home with advice to seek the opinion of the neurophysician on the following day at AHRR. The child was not brought back to me for follow up. It is not known to me whether the child was taken to the neurophysician as advised by me. An EEG (dated 15 Mar 03) is available among the documents, which shows features of right-sided epileptic discharges with left sided dysfunction.
Jun 03 to 09 Dec 03 :
Perusal of documents received from Maj. L Balhara during Master Shaurya's admission to hospital on 08 Jan 04 include :
1. X-ray No.17896 dated 06 Jun 03 : X-ray of the showing fractures of the right shaft of the humerus.
2. X-ray No.36531 dated 27 Jun 03 : X-ray of the right humerus showing fracture of the mid shaft of the humerus.
3. Case sheet of Base Hospital, Delhi Cantt. With entries dated 28 Jun 03, 17 Oct 03 and 18 Nov 03.
4. X-ray 41852 dated 23 Jul 03. X-ray of the right tibia showing no evidence of fracture.
5. X-ray No.59780 dated 17 Oct 03 showing fracture of the mid shaft of the right tibia.
6. X-ray No.70000 dated 09 Dec 03 showing fracture of middle third of the right tibia with callus formation.
7. X-ray No.14398 dated 15 Mar 04 showing fracture of the mid shaft of the tibia with anterior angulation and periosteal reaction.SC No.158/11. Page 13 of 29
08 Jan 04 :
Master Shaurya Balhara was brought to the Pediatric OPD of AHRR by Maj. L Balhara and Mrs. Preeti Balhara with evidence of pallor, puffiness over both hands, loss of subcutaneous fat all over the body and features of injuries over the face in the form of multiple bruises and scars over the face. There was also deformity of the right arm, both forearms and middle phalanx of the left middle finger. The parents were not able to give a convincing explanation about the mechanism by which the child had sustained injuries. The child was admitted to the hospital. Opthalmologic and orthopedic consultations were taken. X-rays of the entire body were taken which showed :
1. Multiple fracture ribs (fresh as well as healed) on 6th to 11th ribs on right side and 5th to 11th ribs on the left side.
2. Fracture both ulnas.
3. Fracture right humerus.
4. Fracture right tibia.
5. X-ray skull and dorsolumbar spine were normal.Technetium Bone Scan No.B-19/04 was done on 09
Jan 04 which showed focal areas of radiotracer uptake in -
1. Right humeral shaft.
2. Right and left ulnar shafts.
3. Metacarpal bones right hand.
4. Multiple ribs bilateral.
5. Right ischium.
6. Right tibia shaft.
Normal distribution of tracer was seen in the other bones. Impression of multiple skeletal hot spots consistent with multiple injuries (Battered Baby Syndrome) was made. Other causes of frequent fractures were ruled out by relevant investigations."
19. Based upon the aforesaid findings, PW19 diagnosed that it was a case of "Battered Baby Syndrome" His summary and SC No.158/11. Page 14 of 29 opinion are as under :
1. Shaurya Balhara, son of Maj L Balhara was neurodevlopmentally and physically normal when seen by me in June 2002. A CT scan of the brain done at that time excluded any intracranial cause of alleged speech delay by the parents. The claim that the events at birth were responsible for any speech or neurodevlopmental delay as alleged by the parents was not tenable based on the clinical and radiological evaluation.
2. October 2002 : The presence of bilateral brain hemorrhages in the absence of any skull fracture or abnormality of the blood coagulation system (Prothrombin time and PTTK) strongly suggests that Shaurya Balhara, son of Maj L Balhara sustained these as a result of having been shaken violently.
The radiological survey done at this time shows normal bones in terms of injury and calcification suggesting that they were of normal strength.
3. X-rays of the right tibia (No.59780 dated 17-10-03 and No.70000 dated 9-12-03) show a spiral fracture of the mid-shaft of the tibia. This occurs due to a severe twisting force applied to the leg as may occur in a child who is running, skiing or involved in marked physical activity. Its occurrence in a child of Shaurya's state of minimal ambulation at that time strongly points to intentional twisting of the leg by a strong person which resulted in this injury.
4. Radiological survey done on 08 Jan 04 shows multiple fractures (more than 15) sustained at different times. The radiological appearance of the bones suggest that the bones were normal in strength. These fractures have occurred due to application of considerable force to the bone and are not expected to have occurred during routine activities indulged in by a child. A fall from a chair or sofa cannot explain the numerous fractures sustained at different times. They also cannot SC No.158/11. Page 15 of 29 explain the multiple rib fractures, fractures of both ulnas and the superficial injuries.
5. The presence of black eye, multiple abrasions and scars on the body of Shaurya Balhara, son of Maj L Balhara on 08 Jan 04 suggest that these were inflicted repeatedly over a period of time.
6. The child was severely malnourished on admission to the hospital on 08 Jan 04, suggesting that he had not received a nutritionally adequate diet.
7. The child showed considerable improvement in his health, cognitive behaviour and cheerfulness when he was removed from the house of Maj L Balhara and shifted to the residence of Mrs. DN More. This is readily apparent from the photographs dated 19 Feb 04.
8. On follow up in Feb 05, the child had shown deterioration in terms of his nutritional status. He had ecchymotic patches (bruises) over his body. His anthropometric parameters had not kept pace with his age, suggesting poor body growth.
Opinion : In my opinion, Shaurya Balhara, son of Maj L. Balhara has been intentionally subjected to severe physical abuse and neglect which has been responsible for superficial injuries (scars, abrasions, black eye), multiple features, intracranial hemorrhages, malnutrition and psychomotor retardation over a period of time (Oct 2002 till date). There was a temporary period of improvement (15 Jan 04 to 19 Feb 04) in the child's condition when he was shifted away from the residence of Maj L Balhara to the residence of Mrs. DN More.
While it is stated that the grevious injuries sustained by Shaurya Balhara, son of Maj L Balhara occurred as a result of considerable physical force applied on several occasions, it is not possible to define the exact mechanism of injury and weapon (if any)."
SC No.158/11. Page 16 of 2920. In the cross examination also, PW19 deposed that though the victim was born by way of forced delivery by forceps, however, he was normal both mentally as well as physically when brought to him in June, 2002. That time, the CT Scan of the victim was also done which also came to be normal. He denied the suggestion that the gait of the child was abnormal. He deposed that possibly the child may have been brought to him for treatment about 8 to 10 times till August/September 2004. He deposed that he referred the victim to other specialist like Spastic Society of India in January, 2003 and Orthopedic Specialist as it was observed during his treatment that he had intra cranial hemorrhage and multiple fractures sustained at different period of time and therefore, a probe into the subsequent development of the child was required. He further testified that he did not inform Col. P.L. Verma regarding illness of the victim as he had asked accused Lalit Balhara to contact Col. P.L. Verma so that proper counselling can be given for management of the victim's problems. He came to know about Col. P.L. Verma from accused Lalit. He informed Col. P.L. Verma through accused Lalit only and Col. P.L. Verma had come to meet him two weeks before the High Court proceedings. He denied the suggestion that injuries found on the body of the victim could have been caused because of fall. He explained that 'shaken violently injury' means multiple hemorrhage inside the brain. He also denied all other suggestion put to him by cross examining the Counsel.
21. There is nothing in the testimony of PW19 to suggest that he gave the report Ex.PW19/A at the instance or in collusion with the complainant. There is no indication that he knew the SC No.158/11. Page 17 of 29 complainant previously or that he had close contact with him. In fact, it has come that he got to know the complainant only through accused Lalit Balhara. It has also come in the cross examination of this witness that accused Preeti also was working as PRO in some hospital i.e. Army Hospital, Delhi Cantt. and a suggestion was given to the witness that he was in infatuated by her, which he denied. Therefore, it is nowhere the case of the accused that PW19 and the complainant knew each other before year 2005. In fact, the case of the accused is that PW19 and accused Preeti knew each other, being employed in the same hospital i.e. Army Hospital, Delhi Cantt. Thus, if any person could have influenced the opinion of PW19, it could have been none else than accused Preeti.
22. Hence I find nothing on record which would persuade me to disbelieve the report of PW19. The same seems to be correct, genuine and reliable. It is evident from the report and the opinion of PW19 that the victim was initially absolutely normal, neuro developmentally and psychically. The claim of the accused that the events at the birth of the child were responsible for speech and neuro developmental delay of the child are false and not supported by clinical and radiological examinations. The victim had suffered bilateral brain hemorrhages on having been shaken violently. His legs have been intentionally twisted by strong person which resulted in spiral fracture of the mid shaft of tibia bone. He had suffered multiple fractures at different times due to application of considerable force on the bones which does not happen during routine activities of a child. The fall from a chair and a Sofa cannot explain the numerous fractures sustained SC No.158/11. Page 18 of 29 by the victim at different times. They also cannot explain the multiple rib fractures, fracture of both ulnas and superficial injuries. These only indicates that the child has been beaten brutally with a stick or some other like object. The presence of black eye, multiple abrasions and scars on the body of the victim demonstrate that these were inflicted repeatedly over a period of time. The child was found malnourished as he had not received adequate nutritional diet.
23. Therefore, it is evident that the victim had been intentionally subjected to severe physical abuse, torture and neglect, which was responsible for superficial injury (scars, abrasions, black eye) multiple fractures, intra cranial hemorrhage, malnutrition and psychomotor retardation over of a period of time during the year 2002 to year 2005. It is also evident that nobody else than the accused were responsible for the aforesaid inhuman, torturous and cruel treatment meted out to the victim.
24. The findings and the opinion of PW19 have also been confirmed by the Medical Board of AIIMS. As noted herein-above, the Medical board was constituted at All India Institute of Medical Sciences, New Delhi, in January, 2006 under the directions of the High Court passed in Writ petition (Crl.) No.173 of 2005 for medical examination of the victim child. PW5, PW12, PW13, PW14, PW21 and PW22 constituted the members of the Medical Board and PW20 Dr. Veena Kalra, Professor and Head, Department of Paediatrics, AIIMS, was its Chairperson. The Board submitted its report dated 14.2.2006 to the High Court, a photocopy of which was filed alongwith Charge Sheet in this case and is Mark PW5/A SC No.158/11. Page 19 of 29 as well as Mark PW12/A. This is so for the reason that there are two photocopies of the same on record which were separately put to PW5 and PW12 and hence marked as Mark PW5/A and Mark PW12/A. The report shows that the Board has concurred with diagnosis made by PW19 and the observations contained in the report of PW19.
25. Ld. Counsel for the accused has vehemently submitted that this report cannot be relied upon, same being inadmissible in evidence and for this reason, it was not exhibited during trial of the case. He submitted that the original of the report has not been produced on record and therefore, photocopy Mark-PW12/A has to be taken out of consideration. The submissions of the Ld. Counsel for the accused are liable to be rejected. It is apparent that the Medical Board had submitted its report in original to the High Court during proceedings of Writ petition (Crl.) No.173/05. PW10 has deposed that as per note sheet dated 04.3.2006 on the file of the aforesaid Writ petition, original report was sent to the Guardianship Judge through District & Sessions Judge, Delhi, as ordered by the Division Bench of the High Court. PW16, who was the Ahlmad in the court of the Guardianship Judge, Tis Hazari Court, Delhi, at the relevant time, deposed that as per record, the aforesaid original report of the Board was received by the earlier Ahlmad Sh. Ashok Kumar vide receipt no.279144 dated 09.3.2005. He proved the Covering Letter of the High Court as Ex.PW16/A and the receipt of the Ahlmad Ashok Kumar as Ex.PW16/B. He further deposed that the report is not traceable in the file and hence he is unable to produce the same.
SC No.158/11. Page 20 of 2926. What appears from the testimony of PW10 and PW16 is that the original report of the Board was sent by the High Court to the Guardianship Judge, which was received by the Ahlmad Sh. Ashok Kumar and thereafter the report got lost and was untraceable. In such a situation, the only option for the prosecution was to prove the report by leading secondary evidence. It is for this reason that the photocopy of the report obtained by the Investigating Officer during investigation of this case and forming part of the Charge Sheet was sought to be proved by the prosecution and which has been marked as Mark- PW5/A as well as Mark-PW12/A. The accused nowhere deny that this photocopy is not the true and correct copy of the original report. PW5, PW12, PW13, Pw14, PW21, PW22, who were the members of the Board and PW20, who was the Chairperson of the Board, have identified and admitted their signatures on the aforesaid photocopy of the report and have confirmed that it is true and correct copy of the original report which they had prepared and submitted to the High Court. None of the aforesaid witnesses has disputed his signatures on the photocopy or its genuineness. Once it is established that original report has got lost and the loss is not attributable to the complainant or prosecution and all the members of the Board as well as its Chairman say that photocopy of the report on record is true copy, the photocopy of the report becomes admissible as secondary evidence in view of section 65(b) of the Indian Evidence Act. Hence, in my opinion, the report of the Board has been sufficiently proved and the same is now marked as Ex.J1.
27. The report Ex.J1 shows that the Medical Board had SC No.158/11. Page 21 of 29 convened various meetings in which they examined the victim child as also his previous Medical record. The Board has come to the following conclusions :
1. Master Shaurya was a normal child in the first 2 years of life. There was no evidence of cerebral palsy or developmental delay.
2. Multiple injuries of Master Shaurya Balhara were non-accidental. Multiple bone fractures at different stages of healing alongwith subdural haematoma, black eye, bruises, in the absence of plausible explanation of the cause of child's injuries were suggestive of diagnosis of Battered Baby Syndrome with emotional deprivation and malnutrition (Reference : Helfer, Mary Edna, Kempe, Ruth S. and Krugman. Richard D. The Battered child. 5th ed Chicago II : University of Chicago Press, 1997).
3. Master Shaurya had improved nutritionally and mentally in last one year although there are residual neurological deficits due to subdural haematoma.
4. Currently, there is no evidence of psychomotor retardation which was present during the phase of battering and emotional deprivation and parental neglect."
28. The Board has specifically described the ailment of the child as 'Battered Baby Syndrome' and its causes to be inflicted injury due to physical torture, as nutritional and emotional deprivation.
29. The abovenoted medical evidence on record is consistent with and best explained by Battered Baby Syndrome (BBS). The BBS simply indicates that a child found with serious repeated injuries has not suffered those injuries by accidental means. It implies that the child suffered injuries at the hands of another and not by falling off a sofa, chair etc. and further that SC No.158/11. Page 22 of 29 the injuries have been inflicted intentionally over a period of time.
30. Apart from the medical evidence, there is other evidence on record, which also points towards the guilt of the accused and it is the testimony of the victim child himself. He, appearing as PW1 has unequivocally given the details of torture and inhuman treatment meted out to him by the two accused. His testimony is a heart moving story of any unfortunate child, who was being treated as an animal by his own natural father. He deposed that earlier he was living with bad people namely Lalit and Preeti. Both of them used to beat him with a danda so much so he was not able to walk properly. Whenever he used to cry, they would insert a danda in his mouth, as a result of which some of his teeth had got broken and his mouth used to be filled up with blood. They had tutored their two children not to mix up with him. The children had been asked to hate him saying that he was a mad child and like a dog. Whenever they used to go for a party, both Lalit and Preeti used to taunt him that nobody would take a mad child like him to the party. They used to lock him in a dirty room threatening him to keep on walking and not to sit and in that event, they would thrash him properly. They used to tell him that after he is eliminated they would bring up their children very nicely. He had no other option except to take water from a bucket lying in a bathroom, which was always dirty. He was not permitted to play with toys and whenever he used to take a toy from other room, he was chased and beaten with a danda. He had been tortured by forcing fingers in one of his eyes or else they would sprinkle chilly powder in his eyes. They would offer him dry bread and would ask him to eat it slowly. At times, there would be small SC No.158/11. Page 23 of 29 stones and would ask him to eat the same. Whenever they used to give him a bath, they would hold him by his legs and would put his head in the bucket of a dirty black water, as a result of which he was unable to breath and his breath would stop for some moment. In case he tried to breath, the water would rush into his nose. This was repeated 4 to 5 times in a day. He further deposed that they used to beat him repeatedly with a danda on whole body and would swing him very fast so that he would become almost unconscious. They inflicted injuries upon his head by striking his head to the wall. They used to force him to walk, run and make a noise like that of a horse i.e. pat - pat. Whenever the said noise was not heard by them, they used to beat him badly. They had also broken his entire body and it was very difficult for him even to walk. Whenever he used to sleep on floor, they would pass over his chest after putting their legs and weigh upon him and would say that now they would kill him. The witness i.e. victim child was able to identify Lalit and Preeti in the court even after they had been mixed up with other males and females present in the court room.
31. The victim was put to thorough and extensive grilling by the Counsel for the accused in the cross examination, but he was not able to elicit anything contrary to the prosecution case. The witness deposed that he does not know Akshit and Kashish, the other two children of the accused as he was not allowed to go to their room and they never celebrated his birthday party. He denied that all the members of the family used to sleep on the mattress on the floor and reiterated that only he was made to sleep on the floor. The cross-examining Counsel has made a SC No.158/11. Page 24 of 29 vigorous attempt to put the defence of the accused to this witness in the shape of 64 questions, which were mostly in the form of suggestion. However, the witness denied each and every suggestion put to him by the Ld. Counsel. I do not find it necessary to burden this judgment by reproducing those questions and the answers given by the witness. Suffice it to say that the witness has stood his ground throughout the cross examination, despite his tender age and did not mention anything inconsistent and contradictory to his previous statement. The tone and tenor, in which the child has testified before the court does not give any slightest indication that he may have been tutored by anybody or that he was deposing at the instance of his maternal grandparents. The deposition appears to be voluntary in all respects besides being credible, unblemished and totally trustworthy.
32. It needs to be noted that the child had developed hatred against the two accused to such an extent that he refused to recognise them as their parents during his testimony before this court. He has deposed that his father is Sh. Devender Singh (who, in fact, is his maternal uncle) and his mother is Anjali (since deceased). In reply to a question in his cross examination, the witness has stated that he was stolen by bad persons i.e. the accused so that he may forget his Papa and Mummy, who were Devender and Anjali.
33. The aforesaid deposition of the victim child makes it evident that he was treated by the accused as a mere animal and not as a human child. He was having a mere animal existence in SC No.158/11. Page 25 of 29 the household of the accused. The accused hated him for obvious reasons and wanted to get rid of him at any cost. It was to fulfill their evil designs that they resorted to such horrible, torturous and shocking treatment to the victim child. One cannot help becoming shocked and alarmed to know the manner in which the victim child was being treated by the two accused.
34. It is also evident from the deposition of PW2 that the accused, in order to conceal their misdeeds, did not allow him to see or meet the child despite his repeated entreaties. He was never permitted to see his grandson i.e. the victim child, which if done, would have exposed the accused and brought to light their inhuman and wild conduct towards the child.
35. Much reliance was placed by the Ld. Counsel for the accused on the deposition of DW1, DW2, DW3, DW4, DW5 and DW6 to contend that the prosecution case is only a fabricated story and the accused have been treating the victim child properly to the best of their capabilities. All these witnesses have deposed that the accused had been bringing up the victim child properly like any other child. DW1 was the immediate superior of accused Lalit from the year 2002 to 2004 and admittedly he had not visited the household of accused at any point of time. DW2 and DW3 were the neighbours of the accused at Maneksha Marg, New Delhi. DW4 knew the couple as her husband is a friend of accused Lalit. She stated that she used to talk to accused Preeti but nowhere states that she visited the household of the accused. DW5 is the childhood friend of father of accused Preeti. He stated that he had seen the couple and the victim for the first time on the occasion of SC No.158/11. Page 26 of 29 their marriage and thereafter, he met them several times at the parental house of accused Preeti. Thus admittedly, he had not visited the household of the accused at any time. DW6 is the daughter of accused Preeti from her first marriage with Major Sanjay Lochab.
36. I find it very difficult to believe the testimonies of aforesaid defence witnesses for the reason that their testimonies are in direct conflict with the medical evidence on record regarding physical and mental condition of the victim child as well as the testimony of the victim child himself, which I have found to be reliable and truthful. Secondly, it is a matter of common experience that the two accused would have always hesitated to beat or maltreat the victim child in presence of any guest in the household. Therefore, there was no occasion for these witnesses to witness the inhuman treatment meted out to the victim child by the two accused. The photographs on record Ex.DW6/A (colly) do not inspire any confidence as they have been shot on one off occasions and do not depict the continuous life style of the victim child in the household of the two accused.
37. In my opinion, on an overall assessment of the evidence produced by the prosecution, it is revealed that it is a case of 'Battered Baby Syndrome'. The victim child had been badly and brutally battered by the two accused herein. He was beaten by sticks, his head banged against the wall, his head was put under water making it impossible for him to breathe, chilly powder thrown into his eyes and was left to starve in a locked room. The fractures all over his body including ribs and ulna as well as fibula SC No.158/11. Page 27 of 29 bones, blackening of eyes, bruises on his face and hindered neuro as well as physical growth are consistent with 'Battered Baby Syndrome'. It is also writ large from the evidence on record that the accused felt the victim child a burden upon them and intended to do away with him slowly and systematically so that nobody could smell any foul play. It is to achieve their such evil and illegal design that the accused started torturous, inhuman, horrific and barbaric treatment of the victim child when he aged just 3 years in the year 2002 and continued the said treatment unabatedly till the year 2005 when the complainant came to know about this.
38. The explanation offered by the accused that the child suffered these injuries by falling while walking as he was physically weak gets negatived by th opinion of medical experts who examined the child and whose reports have been detailed hereinabove. The fractures on the ribs, ulna and fibula bones of a baby are totally inconsistent and cannot be explained by a fall while walking. The fractures on these bones cannot even be suffered in a road accident by a child, as per Medical jurisprudence. Spiral fractures seen in the body of victim imply applying of twisting force by a strong person.
39. The accused have utterly failed to explain how the child sustained aforesaid fractures and injuries. Thus, there is no escape from the conclusion that the accused only are responsible for the 'Battered Baby Syndrome' of the child and it is they who have inflicted these fractures and other injuries on their infant son i.e. the victim child.
SC No.158/11. Page 28 of 2940. As noted hereinabove, the intention of the two accused was to cause death of the victim in an unsuspecting manner. The victim would surely have died but for the timely intervention of the High Court in W.P. (Criminal) No.173/05. The person, who informed the complainant on telephone about the child's plight proved to be a God sent saviour for him and his life could be saved. The acts of the accused are squarely covered by illustration (b) appended to section 307 IPC and they, undoubtedly, guilty of attempt to murder.
41. The prosecution has been able to prove the guilt of the accused beyond reasonable doubt. Both the accused are hereby found guilty of having committed offences u/s.307 IPC and u/s.23 of Juvenile Justice (care and protection of children) Act, 2000. They are convicted accordingly.
Announced in open (VIRENDER BHAT)
Court on 30.7.2012. A.S.J. :Dwarka Courts
New Delhi.
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