Delhi District Court
State vs Pardeep on 9 June, 2023
-1-
IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 107/2019)
FIR No. 302/2018
Police Station S.P. Badli
Charge sheet filed Under Section 313 IPC
Charge framed Under Section 313 IPC
State V/s Pardeep
S/o Sh. Shyam Babu
R/o Gali No.11, Indira Vihar,
Block-A, Khora Colony,
Ghaziabad, UP.
Permanent resident of:
Village Bairona Kalan Katra
Distt. Itawa, UP.
......Accused
Date of institution 18.02.2019
Arguments on 07.06.2023
Judgment Pronounced on 09.06.2023
Decision Acquitted
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 1 of 27 -2- motion are that in the intervening night of 07/08.04.2018, a DD No.115B regarding beating of a pregnant lady by her husband at Jeewan Park at H.No. 187, Gali No.18 was received. After receiving the said DD ASI Subhash reached at the spot, where he came to know the injured Preeti has already been removed to the hospital and a male feotus was found in the bathroom in the said house.
After recording the statement of witnesses and on completion of the investigation, the charge sheet had been filed under Section 313 IPC by the IO against accused Pardeep.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 24.05.2019 charge under Section 313 IPC against the accused was found to be made out. The formal charge as above was framed against the accused on the said date to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 12 witnesses in all.
PW1 Sh. Ram Narayan deposed that he married his daughter Preeti with accused Pradeep Kumar in the year 2017 according to Hindu rites. That her daughter visited his house and his wife informed him that their daughter is pregnant. That in the SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 2 of 27 -3- last week of March, his daughter visited their house alongwith accused, who dropped his daughter at our house. That after three days since accused dropped his daughter at their house, the accused came to their house and gave beatings to his daughter. That accused hit kohni on the stomach of his daughter, who was pregnant. That his daughter suffered injuries and his daughter was taken to BSA hospital, where she was medically treated.
That after few days, his daughter came to their house from the BSA Hospital. That his daughter went to bathroom in the house and suffered pain in her stomach and she miscarriage. That they took her to the hospital with fetus. That in the hospital, she was medically examined and doctor handed over us the fetus and he buried the same.
He further deposed that after some days, he alongwith police went to the house of the accused, where accused was found and apprehended by the police on his identification. That accused was arrested vide arrest memo Ex. PW1/A and personally searched vide memo Ex. PW1/B. PW2 Smt. Usha deposed that her daughter Preeti married with accused Pradeep Kumar about 1 ½ years back prior to the incident of miscarriage. That on 26.03.2018, her daughter alongwith accused reached at their house and her daughter was pregnant at that time. She further deposed that on the same day, the accused gave beatings to her daughter and hit elbow on her stomach and threatened to kill her daughter.
SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 3 of 27 -4- She further deposed that accused insisted that Preeti should accompany him to his house i.e. matrimonial home, but Preeti was declined to accompany him at her matrimonial home. That accused gave beatings to her daughter on that day and caused injury and her daughter crying in pain in her stomach. She further deposed that they called the police and police instructed the accused not to visit their house. That they took their daughter to BSA Hospital, where she was medically examined. PW2 further deposed that she informed to doctors that her daughter is pregnant and suffering pain in her stomach due to the elbow blow in her stomach by the accused. She further deposed that on 07.04.2018, her daughter went to bathroom in the house and suffered pain in her stomach and she miscarriage. That they took her to the hospital with fetus wrapped in a cloth and made a call to the police. That police accompanied them to the hospital and in the hospital, she was medically examined. She further deposed that doctor handed over them the fetus and they buried the same.
PW2 further deposed that neither accused nor his family members visited the hospital to see the condition of their daughter Preeti. She further deposed that statement of her daughter Preeti Ex. PW2/A was recorded in her presence in the hospital by the police and on the basis of said statement, the present case was registered.
She further deposed that police arrested the accused and sent him to JC and after release from the jail in the present SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 4 of 27 -5- case, accused visited their house and took my daughter Preeti and they both started living together separately. She further deposed that her daughter again conceived and she died on 20.05.2019.
PW3 HC Naresh deposed that on 08.04.2018, he was posted at PS S. P. Badli and was working as MHC (M) and on that day, ASI Subhash Dhaka had deposited one sealed parcel and one sample seal in malkhana and he made entry Ex. PW3/A in this regard in register no. 19 at serial no. 4936/18. That thereafter, on 09.04.2018, SI Ranpal had deposited with him one sealed parcel and one sample seal in malkhana and he had made entry Ex. PW3/B in this regard in register no. 19 at serial no. 4941/18.
He further deposed that thereafter, on 10.04.2018, SI Ranpal had deposited with him one sealed parcel and one sample seal in malkhana and he made entry Ex. PW3/C in this regard in register no. 19 at serial no. 4942/18. That thereafter, on 04.05.2018, SI Ranpal had deposited with him one sealed parcel and one sample seal in malkhana and he had made entry Ex. PW3/D in this regard in register no. 19 at serial no. 4991/18.
PW3 further deposed that on 10.05.2018, he took three sealed pulandas and three sample seals to FSL vide RC No. 182/21/18 Ex. PW3/E for depositing the same at FSL Rohini. That after depositing the same, he obtained the acknowledgment of FSL Ex. PW3/F. He further deposed that during the period the case property/ pullandas remained in his possession, no one SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 5 of 27 -6- tampered the same in any manner.
PW4 ASI Jai Bhagwan deposed that on 08.04.2018 he was working as duty officer and on that day at about 7.45 a.m., HC Anar Singh came to PS along with a rukka sent by ASI Subhash Dhaka and on the basis of which he registered the present FIR on computer and proved the same as Ex.PW4/A. He also made endorsement Ex.PW4/B on rukka and certificate under Section 65B Evidence Act as Ex.PW4/C. PW5 is Ms. Shashi Bala Pahuja, Senior Scientific Officer, FSL, Rohini. She deposed that on 10.05.2018 three sealed parcels were received in the office of FSL with forwarding letter. She further deposed that she opened the parcel, examined the exhibits and prepared her detailed report Ex.PW5/A. She further deposed that she prepared allelic data Ex.PW5/B. She further deposed that as per report, the DNA profile (STR analysis) performed on the source of exhibit '1' (Blood gauze of foetus), '2a' '2b' (blood sample of accused), '3a' & 3b' (blood sample of victim) provided is sufficient to conclude that the source of exhibits '2a', '2b' (blood sample of accused) and '3a' (blood sample of victim are biological father and mother of the source of exhibits '1' (blood gauze of foetus).
PW6 Ct. Vikas deposed that on 10.04.2018, he was posted at PS S. P. Badli and he alongwith IO SI Ran Pal and Ram Narayan went to Gali no. 2, Shankar Vihar, Khoda Kalan, UP, where the accused was found. That accused Pradeep Kumar was SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 6 of 27 -7- interrogated and arrested vide arrest memo Ex. PW1/A and his personal search was also conducted vide memo Ex. PW1/B. PW7 is HC Anar Singh. He has deposed that in the intervening night of 07/08.04.2018, he was posted at PS S. P. Badli and on that day, on receipt of DD no. 115B regarding beating of a pregnant lady by her husband at Jeevan Park, H. No. 187, Gali No. 18, he alongwith ASI Subhash reached there, where they came to know that injured Preeti has been removed to the hospital and Sh. Ram Narayan and his wife Smt. Usha were found at the spot. He further deposed that a male foetus was found in the bathroom of the said house.
PW7 further deposed that IO ASI Subhash left for hospital and he remained at the spot. That IO returned at the spot after some time from BSA Hospital had recorded statement of Preeti. That IO had taken the photographs of male dead foetus and also made endorsement on the statement of Preeti and prepared rukka for registration of FIR. He further deposed that the rukka was handed over to him at 7:20 am. and he went to PS for registration of FIR and presented the rukka to duty officer, who registered the FIR. He further deposed that after registration of the FIR, duty officer handed over him the copy of FIR and original rukka for presenting the same to SI Ran Pal and he presented the copy of FIR and original rukka to SI Ran Pal, who accompanied him to the spot, where ASI Subhash informed him the facts of the case. He further deposed that the male dead foetus SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 7 of 27 -8- was taken in possession for preserving the same in the mortuary of BSA Hospital.
PW7 further deposed that he alongwith ASI Subhash took the male dead foetus to the mortuary of BSA Hospital and preserved the same. That Postmortem was conducted on the male dead foetus and after postmortem, the male dead foetus was handed over to the relatives.
PW8 is Dr. Satish Kumar Singh, CMO of Dr. BSA Hospital. He deposed that on 04.05.2018 at about 12:45 PM Preeti w/o Pradeep, 23 years female was brought in casualty by Ct. Ranbir for blood sampling and he took the blood sample in EDTA and dried over gauge piece handed over to the police officer. He further deposed that he prepared MLC No. 6317 Ex.PW8/A. PW9 is Dr. Vijay Dhankar, MD (forensic medicine), Specialist and HOD of Department of Forensic Medicine, Dr. BSA Hospital. He has deposed that on 09.04.2018 he was posted in the Department of Forensic Medicine, Dr. BSA Hospital and on that day, he conducted postmortem examination of the body of deceased fetus aged about five months (intra uterine) on the request of SI Ran Pal, PS S.P. Badli with alleged history of deceased being found.
He further deposed that after examination, based on the findings development of the fetus he opined it was a male human fetus of about four months intra uterine gestational age.
SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 8 of 27 -9- That after postmortem examination, the blood sample of the fetus was preserved sealed and handed over to police for DNA profiling alongwith sample seal of the department and the detailed report number 380/18 (running into 3 pages) is Ex. PW9/A. PW10 is SI Ranpal, who deposed that on 08.04.2018 he was posted at PS S.P. Badli and on that day, HC Anar Singh handed over me the copy of FIR and original rukka for further investigation. That he alongwith with HC Anar Singh went to H. No. 187, gali No. 18, Jewan Park, Lipaspur Delhi where they met ASI Subhash Dhaka and parents of complainant Preeti and ASI Subhash Dhaka apprised him the fact of the case and handed over him MLC No. 4930 of Preeti. That ASI Subhash Dhaka handed over him an application Ex.PW10/A for preserving the dead body in the mortuary of Dr. BSA Hospital. He further deposed that he prepared site plan Ex. PW10/B at the instance of Ram Narayan and recorded statement of Ram Narayan and Ms. Usha U/s 161 Cr.P.C and also that of ASI Subhash Dhaka and HC Anar Singh and came back to PS. He further deposed that on 09.04.2018 he alongwith HC Anar went to mortuary of Dr. BSA Hospital where they met Ram Narayan and other relatives. That the dead body of male fetus was identified by Ram Narayan and his statement Ex.PW10/C in this regard was recorded. That the postmortem was conducted on the dead body vide the postmortem report Ex.
SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 9 of 27 -10- PW9/A. He further deposed that doctor/hospital handed over one sealed envelope and sample seal which he seized vide seizure memo Ex. PW10/D and After postmortem the dead body handed over to Ram Narayan vide receipt Ex. PW10/E. He also deposed that the inquest documents were prepared including form 25.35 Ex. PW10/F and application Ex. PW10/G which were prepared before conducting postmortem. He further deposed that he deposited the exhibits with MHC(M) PS S.P. Badli.
PW10 further deposed that on 10.04.2018 he alongwith Ct. Vikas and Ram Narayan went to gali No. 2, Shankar Vihar, Khoda Colony, U.P. where accused Pradeep Kumar was found present who was interrogated and arrested vide arrest memo Ex. PW1/A and also personally searched vide memo Ex. PW1/B. He further deposed that accused made disclosure statement Ex. PW10/H, That the accused was taken to Dr. BSA Hospital for medical examination vide MLC Ex. PW10/J. That the blood sample of accused was taken for DNA. Doctor/hospital handed over small carton box containing duly sealed blood sample of accused and one sample seal which he seized vide seizure memo Ex. PW10/K. He further deposed that the accused was produced in the court and sent to JC and the case property was deposited with the MHC(M) of PS S.P. Badli.
PW10 further deposed that on 17.04.2018 he alongwith victim Preeti went to Rohini court complex where he moved an application Ex. PW10/L for recording statement of SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 10 of 27 -11- Preeti U/s 164 Cr.P.C. which was allowed and marked to Ld. Link MM and on the same day victim was produced before Ld. Link MM who recorded statement of Preeti U/s 164 Cr.P.C. Tht he moved an application Ex. PW10/M for providing copy of statement U/s 164 Cr.P.C. which was allowed and he collected the proceedings conducted U/s 164 Cr.P.C. Ex. PW10/N and placed the same on record.
He further deposed that on 04.05.2018 victim Preeti was taken to Dr. BSA Hospital where her blood samples were taken vide MLC Ex. PW8/A. That Doctor/hospital handed over me a small carton box containing sealed blood sample and one seal sample which he seized vide seizure memo Ex. PW10/O and he deposited the same with MHC(M) of PS S.P. Badli.
He further deposed that on 07.05.2018 he collected postmortem report and placed the same on record. That on 10.05.2018 on his direction HC Naresh took the exhibits from MHC(M) for depositing the same in FSL Rohini and he deposited the same vide road certificate. He further deposed that he recorded the statement of HC Naresh and MHC(M) and also recorded supplementary statement of Preeti on 17.05.2018.
He further deposed that on 02.10.2018 he received the FSL result and placed the same on record. That on 15.10.2018 he deposited the MLC of Preeti in the hospital for obtaining the result regarding nature of injury. That on 08.11.2018 doctor opined simple injury on the MLC of victim Preeti. He further SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 11 of 27 -12- deposed that he prepared charge-sheet which was forwarded by SHO and sent to court by ACP.
PW11 ASI Subhash Dhaka. He deposed that in the intervening night of 07/8.04.2018 I was posted at PS S.P. Badli and on that day, on receipt of DD No. 115B Ex. PW11/A regarding beating of one pregnant woman by her husband at H. No. 187, Jeevan park, Gali No. 18. he alongwith HC Anar Singh reached there where they came to know that injured Preeti has been removed to the hospital. He further deposed that he inspected the scene of crime and HC Anar Singh was left at the spot. That he went to Dr. BSA Hospital where he found Smt. Preeti w/o Pradeep who was admitted in the hospital. He collected the MLC of Preeti. Preeti was under treatment in gynaey ward, who gave statement Ex. PW2/A. He further deposed that he went to the scene of crime. Sh. Ram Narayan and his wife Smt. Usha were found present at the spot and in the bathroom of the said house one male foetus was found. That he took the photographs of the said male foetus with my mobile set and made endorsement Ex.PW11/B on the statement Ex. PW2/A and prepared rukka for registration of FIR. He further deposed that he handed over the rukka to HC Anar Singh at about 07:20 AM for registration of FIR. That the male foetus was taken in possession and deposited in the mortuary of Dr. BSA Hospital for preserving the same vide application Ex. PW10/A. He went to the spot where SI Ran Pal and HC Anar Singh reached at the spot and further investigation was conducted by SI Ran Pal who received SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 12 of 27 -13- copy of FIR and original rukka from HC Anar Singh.
PW12 is Dr.Deepti Bhalla, Incharge, Aam Aadmi Poly Clinic, Pitampura, Delhi. She has deposed that on 08.04.2018 she was posted as CMO, Dr. BSA Hospital and on that day, one patient namely Preeti, 23 years old was brought by CATS Personnel to the casualty with alleged history of physical assault on 26.03.2018 (as told by the patient herself). That the medical examination of the said patient was conducted vide MLC No. 4930/18 by Dr. Nity Ekka (JR Casualty) under her supervision. She further deposed that the patient was also given history of spontaneous abortion on 07.04.2018 at around 11:00 PM (as told by the patient herself). That thereafter the patient was referred to SR, Gynae for examination, expert opinion and further management. She further deposed that Dr. Nity Ekka, JR casualty worked under her supervision and she prepared the aforesaid MLC. She further deposed that she can identify her writing and signature at point A as she had seen her writing and signing during the course of their official duties. She further deposed that MLC is Ex. PW12/A. STATEMENT OF ACCUSED UNDER SECTION 294 Cr.P.C
4. Statements of accused was recorded under Section 294 Cr.P.C. on 20.07.2022 and 03.06.2023 vide which accused has admitted the proceedings under Section 164 Cr.P.C. along with certificate as Ex.P1, MLC bearing no. 4930 dated 08.04.2018 prepared at Dr.BSA Hospital also exhibited as Ex.P1 (now read as Ex.P1A) and DD No.62B dated 26.03.2018 as SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 13 of 27 -14- Ex.P2.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
5. After closure of PE, the statement of the accused persons was recorded u/s 313 Cr.P.C. on 07.06.2023, wherein they denied all the evidence put to him and stated he has been falsely implicated in the present case. Accused stated that all the proceedings were done by the police officials while sitting in the PS. That never gave any disclosure statement rather his signatures were obtained by the police forcibly on several blank papers which were later converted into indiscriminate documents against me to falsely implicate him in the present case. He further submit that he was never arrested at the place and manner as shown by the prosecution.
Accused chose not to lead any defence evidence.
6. Thereafter, matter was fixed for final arguments.
ARGUMENTS
7. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State and Sh. Sunil Kumar, Ld. counsel for accused.
8. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature.
It was further argued that all the police officials have SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 14 of 27 -15- clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC 625.
9. Sh. Sunil Kumar, Ld. counsel for the accused has argued that accused has been falsely implicated. It was argued that the complainant was the wife of accused and was suffering from acute kidney damage prior to the marriage and it is because of her health issues that the miscarriage took place. That the MLC also reveals that the miscarriage was spontaneous. That no such incident dated 26.03.2018 took place and the complainant was at that time residing at her parental home. That the complainant herself could not come forward to prove the prosecution story, who could have been the prime prosecutrix. That the accused has been falsely implicated by the parents of the complainant subsequently. Accordingly, accused deserve acquittal.
10. I have heard the arguments at length and perused the entire record.
FINDINGS
11. The accused Pardeep had been charged for the commission of offence punishable under Section 313 IPC.
SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 15 of 27 -16-
12. The relevant Sections are reproduced as under :
SECTION 313 IPC "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 [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."
PRESUMPTION OF INNOCENCE
13. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 16 of 27 -17- proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
14. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL WITNESS/COMPLAINANT
15. At the very outset it is pertinent to mention that the allegations U/s 313 IPC were levelled against the accused for allegedly causing miscarriage of his wife Smt. Preeti by giving any elbow blow on her stomach. However, the said victim Smt. Preeti never entered the witness box as a SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 17 of 27 -18- prosecution witness as she had later succumbed to her ongoing kidney problem.
The prosecution has next relied upon the testimony of PW1 Sh. Ram Narayan, father of the victim and PW2 Smt. Usha.
PW1 deposed that he married his daughter Preeti with accused Pradeep Kumar in the year 2017 according to Hindu rites. That her daughter visited his house and his wife informed him that their daughter is pregnant. That in the last week of March, his daughter visited their house alongwith accused, who dropped his daughter at our house. That after three days since accused dropped his daughter at their house, the accused came to their house and gave beatings to his daughter. That accused hit kohni on the stomach of his daughter, who was pregnant. That his daughter suffered injuries and his daughter was taken to BSA hospital, where she was medically treated. However, in his cross-examination, the said witness categorically admitted that he was not present when the alleged incident regarding the hitting of elbow by the accused occurred and the said fact was told to him by his wife. He further admitted in his cross-examination that the victim, his daughter Preeti was already undergoing treatment for her damaged kidneys and did not want conception and even the doctor admittedly advised her not to conceive given her medical condition. Thus, the said witness was merely a hearsay witness as he was not admittedly SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 18 of 27 -19- present when the alleged incident took place and not much relevance can be given to his testimony.
Coming to the testimony of the mother PW2 Smt. Usha. She had deposed that her daughter Preeti married with accused Pradeep Kumar about 1 ½ years back prior to the incident of miscarriage. That on 26.03.2018, her daughter alongwith accused reached at their house and her daughter was pregnant at that time. She further deposed that on the same day, the accused gave beatings to her daughter and hit elbow on her stomach and threatened to kill her daughter.
She further deposed that accused insisted that Preeti should accompany him to his house i.e. matrimonial home, but Preeti was declined to accompany him at her matrimonial home. That accused gave beatings to her daughter on that day and caused injury and her daughter crying in pain in her stomach. She further testified that on 07.04.2018, her daughter went to the bathroom in the house and suffered pain in her stomach and she suffered a miscarriage. That she took her to the hospital with a fetus wrapped in a cloth and made a call to the police.
It is pertinent to mention that the alleged incident of hitting with the elbow as narrated by the said witness occurred on 26.03.2018 and the unfortunate miscarriage took place on 07.04.2018 i.e. after more than ten days of the alleged incident. There is nothing to suggest either from the testimony of the said witness or any supporting medical record that the victim Preeti SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 19 of 27 -20- suffered any medical complications in her pregnancy in this period of ten days. Admittedly in the cross-examination of PW2, no written complaint regarding the incident dated 26.03.2018 could be proved by the prosecution. As per the MLC bearing no. 4930/18 conducted by Dr. Nitya under the supervision of PW12 Dr. Deepti Bhalla, the history of abortion around 11:00 PM, on 07.04.2018 as was told by the patient / victim Preeti was spontaneous abortion. The MLC is Ex. PW12/A. The concerned Dr. Nitya who prepared the MLC was never produced in the witness box by the prosecution and as deposed by PW12 Dr. Deepti Bhalla on her behalf the abortion was reportedly spontaneous.
Thus, in a gap of more than ten days from the alleged incident and no supporting medical documents to show that the abortion was caused by any alleged incident of hitting by the accused does not inspire confidence.
Yet moving forward, the undersigned shall now dealt upon other material evidence produced by the prosecution.
PUBLIC WITNESS
16. It is pertinent to mention that there is no public or any other independent witness, who has been examined despite the fact that the alleged incident of hitting with the elbow took place on 26.03.2018 in broad day light around 3.00 to 4.00 p.m. There must have been other neighbours in the gali of Jeewan SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 20 of 27 -21- Park, Siraspur which is a crowded area and some independent persons must have atleast seen the accused enter the house or hear the noise of the complainant Preeti when the alleged incident took place.
Also at the time of procedure of arrest of the accused, there appears to be no sincere efforts which were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages.
In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigorous of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 21 of 27 -22- High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 22 of 27 -23- fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
MEDICAL/FORENSIC EVIDENCE
17. PW9 Dr. Vijay Dhankar, MD (forensic medicine), Specialist and HOD of Department of Forensic Medicine, Dr. BSA Hospital. He had deposed that on 09.04.2018 he was posted in the Department of Forensic Medicine, Dr. BSA Hospital and on that day, he conducted postmortem examination of the body of deceased fetus aged about five months (intra uterine) on the request of SI Ran Pal, PS S.P. Badli with alleged history of deceased being found.
He further deposed that after examination, based on the findings development of the fetus he opined it was a male human fetus of about four months intra uterine gestational age. That after postmortem examination, the blood sample of the fetus was preserved sealed and handed over to police for DNA profiling alongwith sample seal of the department and the detailed report number 380/18 (running into 3 pages) is Ex. PW9/A. I have carefully perused the postmortem report Ex.PW9/A of the fetus in question. No internal injuries or external injuries were reportedly found on the vital parts of the body of the five months intra uterine fetus including the head, SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 23 of 27 -24- neck, chest, abdomen and pelvis. No fresh or recent external injuries were found present over the body. If going by the version of the prosecution for the sake of arguments, the fetus had died / got miscarriage due to the alleged elbow blow given by the accused on the stomach of the victim, some sign of injury should have been visible on the five months developed baby. However, no such inference can be drawn from the postmortem report relied by the prosecution itself Ex. PW9/A. As per the MLC bearing no. 4930/18 conducted by Dr. Nitya under the supervision of PW12 Dr. Deepti Bhalla, the history of abortion around 11:00 PM, on 07.04.2018 as was told by the patient / victim Preeti was spontaneous abortion. The MLC is Ex. PW12/A. The concerned Dr. Nitya who prepared the MLC was never produced in the witness box by the prosecution and as deposed by PW12 Dr. Deepti Bhalla on her behalf the abortion was reportedly spontaneous.
Thus, in a gap of more than ten days from the alleged incident and no supporting medical documents to show that the abortion was caused by any alleged incident of hitting by the accused does not inspire confidence.
Thus, no substantial incriminating evidence could be proved by the prosecution which could bring home the guilt of the accused and connect the incident dated 26.03.2018, if any, of hitting the elbow with the eventual miscarriage which took place after more than ten days on 07.04.2018.
SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 24 of 27 -25- In his defence and in statement U/s 313 Cr.P.C., the accused had stated that the miscarriage which took place was at the parental house where the victim Preeti was residing before 15 days from the alleged incident and that he has been falsely implicated as an after thought by the parents who are interested witnesses. Both the father PW1 and mother PW2 admitted in their cross-examination that the victim Preeti was suffering from an acute kidney disease and both her kidneys were damaged prior to the alleged incident dated 26.03.2018. It is further admitted that the doctors had advised their daughter not to conceive considering her medical condition. It is further admitted that their daughter had stopped taking medicines for her kidney damage while her stay with her parents.
In view of the aforesaid, the argument raised by the Ld. Defence counsel that the miscarriage took place because of the kidney problem and not because of any act by the accused does not seem to be unfounded.
POLICE WITNESSES
18. The remaining witnesses were police officials who have deposed merely on the manner of investigation.
PW7 HC Anar Singh who had received the first DD entry bearing no. 115B admitted that the alleged photographs of the fetus in the bathroom were not placed on record and proved by the prosecution.
SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 25 of 27 -26- PW6 had deposed regarding the formal arrest of the accused and the arrest memo was exhibited as Ex. PW1/A. However, he admitted that no public person or any neighbour was asked to join the investigation at the time of the arrest of the accused.
PW10 had relied on the statement U/s 164 Cr.P.C. of the victim Preeti and the proceedings U/s 164 Cr.P.C. were exhibited as Ex. PW10/N. However, as already stated above, the maker of the statement i.e. the victim Preeti / complainant could not enter the witness box as a prosecution witness to prove the same or identify her signatures.
19. It has been held in the case of Prabhu Vs. State of Tamil Nadu SLP CRL 9416/15 by the Hon'ble Supreme Court that:
"The essential ingredient of Section 313 IPC is that causing miscarriage without woman's consent and by a voluntary act of the accused."
20. In the present case, the prosecution has failed to establish as discussed above that the abortion was by the act of the accused which allegedly took place ten days prior to the miscarriage and in fact as per the medical records i.e. the MLC Ex. PW12/A, the abortion was opined as spontaneous. The victim was already suffering from an acute kidney damage and admittedly was advised not to conceive and had in fact even SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 26 of 27 -27- stopped taking her medicines for her renal failure. In these circumstances, in the absence of any cogent evidence, benefit of doubt has to be granted to the accused.
CONCLUSION
21. Thus, in view of the aforesaid findings, since the complainant Preeti herself could not come forward in the witness box to prove her case and also there is no supporting medical evidence to show that the alleged miscarriage was caused by a voluntary act by the accused, as already discussed above, it can be safely inferred that the prosecution has failed to prove its cawe beyond reasonable doubt and benefit of doubt has to be granted to the accused. Accordingly, accused Pardeep stands acquitted of the charges levelled against him.
22. File be consigned to record room after due compliance.
Dictated and announced in the open (Shefali Sharma) Court on 09.06.2023. Addl. Session Judge-02 (running in 27 pages) (North), Rohini Courts/Delhi SC No. 107/19, FIR No. 302/2018, PS S.P. Badli State Vs. Pardeep Page No. 27 of 27