Full Text
HIGH COURT OF DELHI
JUDGMENT
# Dr. Jhamman Lal ..... Appellant
Through : Mr. H. R. Kaushik, Advocate
Through : Mr. Lovkesh Sawhney, Advocate
1. Whether reporters of local papers may be allowed to see the Judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the Judgment should be reported in the Digest? YES G.S.SISTANI, J.
1. The present appeal has been filed under Section 372 read with Section 382 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”) challenging the judgment of conviction and order on sentence dated 16.12.2000 and 18.12.2000, respectively, passed by the Court of learned Additional Sessions Judge, New Delhi. By virtue of the said judgment the appellant has been sentenced to undergo Rigorous Imprisonment for a period of five (5) years and to pay a fine of Rs.1000/- under Section 316 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). In default of the payment of fine, appellant has been directed to undergo Simple Imprisonment 2010:DHC:6301 the appellant during the investigation and trial is to be set off under section 428 Cr.P.C.
2. Brief facts of the case as noticed by the learned Additional Sessions Judge are as under.
3. On 14.01.1995 DD No.11-B was received in Police Station Ambedkar Nagar at about 9:50 a.m. wherein it was stated that a quarrel has taken place in house no.20/104, DDA Flats, Dakshinpuri, Delhi. Lady constable Neelam (No.328) along with constable Virender Singh (No.1300) visited the said flat, wherein they found that the flat was locked. On enquiry it was revealed that Guddi, wife of the appellant was taken to AIIMS hospital. They reached the AIIMS hospital where it was found that Guddi was admitted to the hospital vide MLC No.3208/95 and thereafter she was referred to Safdarjung Hospital. They reached Safdarjung Hospital along with S.I. Kishan Lal, where Guddi was declared unfit for making a statement. On 15.1.1995, S.I. Kishan Lal along with constable Jai Kishan went to the Safdarjung hospital and after obtaining permission from the doctor, recorded the statement of Guddi. As per the statement of Guddi, she got married to the appellant about 12/13 years back and out of the wedlock she had given birth to two children, namely, Dinesh and Ishwari. About three years ago she had given birth to a dead son and thereafter she fell sick and her husband/ appellant did not help in her treatment. She further stated that her husband (appellant herein) used to often beat and torture her and that about two and a half years ago she had filed a complaint against her husband. During admitted his guilt and promised not to beat and quarrel with her in future. Thereafter, her husband made her withdraw the said complaint of maintenance against him and thereafter, he took her to the matrimonial home where she stayed with her husband and minor children. After sometime, her husband started torturing her once again, when she was in advance stage of her pregnancy (in seventh month). The appellant accused her that the child in her womb was not his and further stated that he would not allow her to remain in the matrimonial home. Thereafter she had started living with her parents. Guddi further stated that on 14.1.1995 she had gone to Lady Harding Hospital for her medical check-up where she was advised to bring her husband. Guddi went to her husband's house at about 9:30 a.m., where her husband gave a kick blow on her stomach. Due to the kick blow on her stomach by the appellant, she suffered labour pains and bleeding started. Guddi was brought to the AIIMS hospital and from AIIMS she was referred to Safdarjung Hospital where she gave birth to a dead child on 16.1.1995. On the basis of statement made by Guddi, an FIR was registered. During the course of investigation statement of Guddi; her mother, Smt. Rukma Devi; and her brother, Hem Raj was recorded.
4. The prosecution had examined eight witnesses. Three witnesses were examined on behalf of the defence, including Jhamman Lal as DW-1. Statement of the appellant was also recorded under Section 313 Cr.P.C. It would be relevant to reproduce the evidence of some of the material witnesses: After about 5-6 years of the marriage, accused started beating and harassing me because he was having some extra marital relations with other lady, but I do not remember her names. I have got two sons out of this wedlock. Two girls and two boys were still born. Accused continued to harass and beat me and wanted to threw me out from the house as he wanted to keep the other lady in the house. I was turned out of the house about five years back by the accused. I started living with my mother. Thereafter, I filed a maintenance petition against the accused upon which the court granted Rs.500/- per month as maintenance allowance. After some time accused again approached me for re-conciliation but put a condition that he will accept me only in case I withdraw my maintenance petition. Thereafter, in the interest of my marriage life and children I withdrew the said petition. Thereafter, I started living with the accused. After about one and a half month, accused again started beating and harassing me. On 14.1.95, I had gone to the accused for taking me to the hospital as I had started labour pains. Accused refused to take me to the hospital and gave a kick blow on my stomach due to which the child in my womb expired and I gave delivery to a still born male child. I removed to the hospital by the police. My statement Ex.PW-1/A was recorded by the police in the hospital, which bears my thumb mark at point-A. I remained in the hospital for about one month. In the cross-examination by learned counsel for the appellant, PW- 1 stated as under: I did not mention in my complaint Ex.PW-1/A that I had given birth to a still born child about three years back. It is correct that I got pregnant six times so far. It is correct that four of them were pre-term abortions. It is correct that all these four were still born. It is correct that out of six pregnancies I have got two alive children today. It is incorrect that accused gave me best available treatment from the doctors of different hospitals and nursing homes due to which my two children could be saved…… It is incorrect that 7.3.92 I left the house of the accused of my own. Volunteer on that day I was turned out of the house by the accused. It is incorrect that since then I am residing at the house of my parents continuously, volunteer once during the proceedings of maintenance the accused had compromised with me and took me to stay with him. I in the court of Smt.Deepa Sharma, MM till 15.9.94. It is correct that I had withdrawn my maintenance application on 7.9.94, volunteered I withdrew the same on the asking of the accused. On that date, I was staying with my parents. After the withdrawal of the case on the same day I had accompanied the accused to his house at house No.20/104, Dakshinpuri, New Delhi…… It is correct that I had withdrawn my Execution Petition for maintenance on 15.09.94, vol. I had withdrawn at the instance of the accused. It is incorrect to suggest that on 15.9.94 I had come to the court from my parents house, Vol. I had come to the court along with the accused from the matrimonial house. It is correct that I had filed second petition of maintenance against accused in Dec. 1994…... It is correct that as the accused had refused to keep me, therefore, I had filed the second maintenance petition volunteer the accused had alleged that the child in my womb at that time was not from him. I did not go to Lady Harding Hospital even once of check up prior to 14.1.1995. Even on 14.1.95 I did not go to Lady Harding Hospital for check-up volunteer I went thereafter to Safdarjung Hospital, i.e. when the accused had given kick blow on my stomach. It is incorrect to suggest that on 14-15 night at 2:30 a.m. I developed labour pains as a result of which bleeding started at my parents house. I did not state to the Doctor that I developed labour pain as a result of which bleeding started at the aforesaid time i.e. 2:30 a.m. Voluntarily I was not in senses on that night, so how could I say that. I had stated in my complaint to the police which is Ex.PW-1/A that on 14.01.1995 I had gone to Lady Harding Hospital for check-up where the doctors asked me to call my husband and when I came to the house to call him at 9:30 a.m., my husband gave me beating and gave me a kick blow on stomach. I was given kick blow on stomach by the accused at about 8:45 or 9:00 a.m. on 14.01.1995. Nobody was present in the house when I was given kick blow. Voluntarily my mother and sister-in-law had accompanied me to the house of the accused and after leaving me there, had left. The kick blow was given to me by the accused in his shop. That said shop is a clinic. ….. I did not raise any alarm or made any noise when I was given the kick blow by the accused. The accused had called police in the clinic, from there I was taken to the police station and then Court Question: In your statement you had stated you had stated earlier that on 14.1.95 you did not go to Lady Harding Hospital but now you have stated that you want to Lady Harding Hospital, which of your statement is correct? Ans. My statement that on 14.1.95 I went to the Lady Harding Hospital, is correct. On 14.1.95, I went to Lady Harding Hospital at
8.00 A.M. I do not know the name of the doctor who examined me on that day. Without examining me the doctor had asked me to call my husband. As there was need of blood and signatures on some documents were required by the doctor, so the doctor had asked me to call my husband. While I was sitting on the Bench alongwith my mother, the doctor immediately after seeing me stated as blood was required for transfusion in me therefore my husband should be immediately called. My brother, mother and sister-inlaw (Bhabi) and landlord had accompanied me to the Lady Harding Hospital. No O.P.D. Card was made on that day. No entry in the register was even made. As I was running temperature and was having sore throat so I had gone to the Lady Harding Hospital. I had taken the medicine for the aforesaid problem from Dr. Kharabanda, residing in DDA flats, Madangir. He treated me after 14.1.1995. Before 14.1.95, I did not take his treatment. I this correct that on 14.1.95 I did not take the treatment of my sickness from anybody. I took the treatment from Dr. Kharbanda for 2-3 days but I cannot tell the exact date. I was admitted in the S.J. Hospital on 14.1.95. I remained in the hospital admitted for about one month. It is incorrect to suggest that on 14.1.95, I was having labour pain and was also bleeding and therefore, my mother, brother and sister-in-law took me to the Lady Harding Hospital. Voluntarily, my condition worsened only after the accused gave me kick blow. It is correct that from Lady Harding Hospital my mother, brother and sister-in-law had brought me to the house of the accused. PW-2, Dr. Chander Kant, S.J. Hospital, New Delhi. On 16.1.95 I had conducted the postmortem examination on the body of recently born male foetus During external examination of the deceased I found that eyes and mouth were closed. Rigor mortes was not appreciable. No sign of putrification was present. There was fresh cut-clean cut margin at the junction of umbilical card with black thread at the junction. There were no other injuries present on the body of the deceased foetus. Weight was 1.580 grams. Height was 38 c.m., circumference of the head was 29 c.m. Antero-posteurius length was 18 c.m. and side to side (from right temporal to left temporal side) 19 c.m. There were no external anti-mortem injuries on the body. During internal examination the skull bones were not united and interior and posteror fontanel larynx was showing mucoid secretions. Hydrostating Test was positive in both the lungs. Both the lungs shows respiratory process changes. Heart was normal. Liver, kidneys and spleen were conjusted. In the stomach there was mucoid collection was present. I gave approximate time since death about 28 hours. In my opinion the cause of death was due to pre-mature delivery induced by application of blunt force. Period of pregnancy was about 31 to 32 weeks in duration……. The postmortem report is Ex. PW2/A which is in my hands, bears my signature, date and is correct. 2 stated as under Except the injuries as already described by me in my report and as already stated above, there was no other injury volunteered the injuries which were described by me in the court were surgical in nature. It is correct that there was no antimortum injuries present on the body of the foetus. I gave the opinion regarding the cause of death on the basis of (i) the history which I derived from the inquest papers (2) duration of pregnancy. I have already stated in my report and there were no external injury on the body of the foetus, volunteered the pre-matured delivery is induced by application of blunt force on an area of abdomen or on the area uterus which contains the foetus. It is incorrect to suggest that in this case the cause of delivery was simply due to pre-mature delivery and not because of pre-mature delivery in the year 1990. I cannot identify the handwriting of the doctor mark DA to DD. The said documents are in the handwriting of different doctors…….
2.30 a.m. On that day, she was 8 months pregnant and was complaining of pain lower abdomen and was bleedings from the vagina. On examination pallor was present and her featle heart sound were absent. There was swelling on the both legs. Dr. Aggarwal opined injuries as grievous cause by blunt force. 6 stated as under: I cannot say who had given history in this case as the same is not mentioned in Ex. PW6/A. Ex. PW6/DA is a Causality card, upon which the detail and treatment are mentioned, whereas MLC is prepared on a prescribed proforma. Causality card is prepared in the causality itself on the basis of the examination of the patient and thereafter MLC is prepared. I cannot identify the sign of the doctor who has prepared the causality card but he was a doctor of Unit I, Senior Resident Gayani Department. As per the findings recorded by the doctor on Ex. PW6/DA, it was the case abruption placantae and the ultra sound performed on the patient. There was featel heart sound was absent and placantae was disrupted and patient was in distress and there was tenderness present on the abdomen suggesting of trauma to the pregnant woman. Generally there is some swelling on a pregnant woman lag in 9th months, commonly known as paedal edema because of pressure of full term pregnancy on veins of leg.” PW-8, S.I. Kishan Lal, deposed in his examination-in-chief as under On 14.1.95, I was posted in P.S. Ambedkar Nagar. On that day, DD No.11-B, copy of which is Ex.PW-S/B was given to me for enquiry. Thereafter, I reached at the place occurrence and from there I went to AIIMS. There on enquiry reached at S.J. Hospital. I moved an application, Ex.PW-8/A, for recording statement of Smt. Guddi, but the doctor opined her unfit for making statement vide endorsement at mark A on Ex.PW-8/A. The DD No.11-A was kept under enquiry. On 15.1.95, I alongwith Constable Jai Kishan again went to S.J. Hospital and after obtaining the permission of the Doctor for recording the statement of Smt. Guddi, which is at mark „B‟ on Ex.PW-8/A. I recorded the statement of Smt. Guddi. During the course of investigation I came to know that Smt. Guddi was given a kick blow on her stomach/abdomen by the accused present in the Court today who is her husband when she was in the advance stage of pregnancy. On 14.1.95 guddi gave birth to a dead male child on 16.1.95, on my request application, Ex.PW-8/C. Postmortem was conducted and I collected the post mortem report thereafter. 8 stated as under On 14.1.95 I reached at house No.2/104, Dakshinpuri at about 10.15 a.m. after receiving DD. At that time nobody met me at the spot. On 14.1.95 house of the accused was locked. On enquiry I came to know tha the injured was already removed to the hospital. I came to know about this fact from one/two persons present there. It is correct that the said colony is developed on small plots. I had gone to the said house on 15.1.95 also at about
5.10 p.m. for investigation. On 15.1.95 accused Jhaman Lal met me at the aforesaid house…... On 14.1.95 I had asked the neighbourers also about the incident of this case also. I was told that there was the quarrel between the husband and wife and injured had been removed to the hospital. However, I could not met any eye-witness on 14.1.95
I did not remove the complainant to the hospital. I Lady Harding Hospital by her brother Hem Raj. The mother of the complainant did not go to Lady Harding Hospital at that time. Only Hem Raj had gone alongwith his sister to Lady Harding Hospital. I came to know that only Hem Raj was the eye witness of this case….. During the investigation, I came to now that from Lady Harding Hospital, Hem Raj, the brother of the complainant, took the complainant to the house of accused….. It is incorrect to suggest that I am deposing falsely. DW-1, Sh. Jhamman Lal, deposed in his examination-in-chief as under: I have two sons and they are living with me since their birth. On 07.03.1992, my wife – Guddi left my house without taking my permission or informing me and since then she is living separately from me and my children. During the pendency of the aforesaid cases, Guddi developed illicit relations with other persons as a result of which she became pregnant. I was not aware about this fact before 12.12.1994. Lateron, after about 3½ months of pregnancy, Guddi withdraw all her pending petitions/cases. The execution application was withdrawn on 15.09.1994. On 12.12.1994, Guddi came to my house at about 5 P.M. after withdrawl of the cases, for the first time, for living with me. She requested me to keep her as she was ill without disclosing her pregnancy to me. She had also apologized to me for past litigation filed by her. On inquiry, Guddi produced the medical documents and after going through the same, I came to know that she was pregnant. I refused to keep her with me, but she attempted to enter my house forcibly, upon which I informed PCR. After sometime, the police came to my house and took both of us to the P.S. Ambedkar. In the P.S. statement of Guddi and myself were recorded. The police asked Guddi to go and stay with her parents. Thereafter on 14.12.1994, Guddi again filed her petition under Section 125 Cr.P.C. On 14.01.1995, at about 9.15 A.M., my mother-inlaw, my brother-in-law, Hem Raj and their landlady brought Guddi in critical condition in a TSR from Lady Guddi to my house in the same TSR. At that time, bleeding was going from the person of Guddi. She was got down by my mother-in-law from the TSR. Thereafter my mother-in-law started abusing me and asked Guddi to stay in my house and got me falsely implicated in some case. She also asked Guddi not to come again to their house and thereafter mother-in-law left my house in the TSR along with my brother-in-law, Hem Raj and landlady. Thereafter Guddi insisted to stay with me and tried to enter in my house forcibly. I again informed Control Room and Local Police, upon which the police reached at my house. Guddi as well as me were taken to the P.S. Ambedkar. They made inquiries from us and Guddi stated that she was not beaten by us. After recording the statement of Guddi, I was let off by the police. On 15.01.1995, two police officials came to my house at 8 P.M. and was taken to the P.S. where I was arrested in this case. Guddi got me falsely implicated in this case in collusion with her parents and brother. The police also demanded Rs. 5,000/- from me which I refused. Guddi was having a disease and a chronic patient of miscarriage and pre-term still born child, which I have already produced on the file. I had never given beating to Guddi on 14.01.1995 or before that. She had falsely implicated me in this case in order to cover up her illicit relations and illegitimate pregnancy and further because of the fact that I did not keep her in my house. In the cross-examination by the learned APP, DW-1 stated as under: On 14.01.1995 also, my statement was recorded by the police at the P.S. Ambedkar Nagar. Again said police made inquiries from me on the aforesaid date, but I do not know whether my statement was recorded by the police or not. On 14.01.1995, when the mother of Guddi abused me at my house, only two-three persons had collected there at that time. I do not remember their names. On 14.01.1995, I was taken to the P.S. at 9.45 A.M. or 10 A.M. At that time, I remained at the P.S. upto 11 A.M. when I left the P.S., Guddi was in the P.S. DW-2, Dr. Mala Shukla, Safdarjang Hospital, deposed in her examination-in-chief as under: I have seen document Marked DA pertaining to the patient Guddi. As per the document the patient was suffering from inevitable abortion. According to the document on 15.4.91 patient aborted a dead female foetus on bed. I have also seen document marked DB pertaining to the patient Guddi. According to the document the patient was having 28 weeks preterm delivery. It was a live male child. On 17.1.92 at 10.05 a.m. and baby expired on 18.1.92 at 6.30 a.m. I have also seen OPD slip marked DC. I have also seen OPD slip marked DD, which is also of Safdarjung Hospital. As per document marked DC, the patient was having 8 months amenorrhea (no menstrual period) with bleeding per vagina. Since 2.30 a.m. on 14.1.95. she was referred from AIIMS, MLC was made. Obstratic history – married for 7 years, first full term normal delivery, 5 year old alive and health, second preterm delivery at 7 months gaestation was a still birth at AIIMS. There are many causes of preterm delivery. According to t he record the patient has suffered from accidental hemorrhage or abrutioplacentae with high blood pressure with anemia. In simple form she was very pale, peller was 2+ and BP 150/90. In the cross-examination by the learned APP, DW-2 stated as under: It is correct that I did not examine the patient personally. I also have no personal knowledge of the facts of the case. It is correct that the examining doctors are not available at the hospital at present. The original record is also not available with me today. The patient was suffering from high BP and anemia at the relevant time. DW-3, Dr. Poonam AIIMS Hospital, deposed in her examination-inchief as under: On 14.1.95, patient Guddi again visited AIIMS hospital, as per document marked DA. As per the document marked DA she visited the hospital on also came with the history of pain in the abdomen and bleeding P/V. On examination she found to have „pellar‟, pulse was 116 p.m. and BP was 160/110. It is also mentioned in the oral examination of the patient on the aforesaid date that the patient was in distress and she was having pedal pedema of ++. On per abdominal examination, uterus was 34 weeks, tone has been increased, tenderness, cephalic and foetal heart sound was not localized. She was also having bleeding per vagina. Her ultra sound was also conducted on the aforesaid date and on ultra sound examination it was found that her fetal heart activity was absent, with area of placental separation. The cause of the separation of the placenta in my opinion could have been either because of the hit over the abdomen or due to high BP. On the basis of the aforesaid documents, I cannot say whether the patient was a case of habitual abortion or not because sometimes in pregnancy a patient can develop high BP and there is no record of the previous BP of the patient. The tests of the patient was conducted because of her earlier history of having two abortions. In the cross-examination by the learned APP, DW-3 stated as under: It is correct that I personally did not examine the patient nor I had seen her complete case history. Whatever I have deposed today on the basis of the documents shown to me in the Court. It is correct that miscarriage and pre-term delivery itself is not a disease and there could be number of reasons for miscarriage or pre term delivery and one amongst the said could also be a hit upon the abdominal or high BP. The general complications in an advance stage of pregnancy are anemia high BP, diabetes etc. On the basis of the documents shown to me in the Court today, I can say that the patient was not the case of habitual abortion. Only in case of any complication, the BP of the patient can fluctuate.
5. It is submitted by counsel for the appellant that appellant has been falsely implicated in this case as the incident had never occurred at all. He submits that the case against the appellant is view to falsely implicate the appellant, while various litigations – civil and criminal – were pending between the complainant and the appellant since 7.3.1992. Learned counsel has strongly urged before this Court that Guddi was suffering from a chronic disease and there is voluminous documentary evidence in respect of the chronic disease of the complainant (Guddi) and for which he had given her regular treatment at various private clinics and government hospitals since her very first pregnancy to the last of her six pregnancies. He submits that the entire evidence – medical as well as documentary – would prima facie establish the innocence of the appellant. Learned counsel submits that the marriage between appellant and Guddi was solemnized on 19.5.1982, she left the matrimonial home on 7.3.1992 without any reasonable or just cause and without his permission, leaving him and the two minor children. Subsequently, she lodged a complaint under section 498-A/406, IPC with the Crime Against Women Cell, which was disposed of soon after the complainant received her stridhan and some money. It is the case of the appellant that after 07.03.1992, the complainant never came back to matrimonial house to rejoin the company of the appellant and minor children. It is thereafter that the complainant filed the first case under section 125 Cr.P.C. for her maintenance as well as a suit under section 6 of the Hindu Minority and Guardianship Act, seeking custody of both the children on 14.9.1992. In the meanwhile the appellant had also filed a petition on 23.9.1992 under section 9 of the Hindu Marriage Act for a decree of restitution of conjugal rights which was decreed in favour of the appellant on 6.8.1994.
6. Learned counsel for the appellant submits that inspite of the decree passed in the case under Section 9 of the Hindu Marriage Act, in favour of the appellant, his wife never returned to her matrimonial home and the appellant continued to reside with his two minor children. Learned counsel submits that during her stay with the appellant, the complainant had conceived on five occasions. The last (sixth) pregnancy was conceived at her parental house and when two cases i.e. for custody of children and maintenance were pending adjudication in the Court of Sh.V.K. Malhotra, learned Guardian Judge and Ms.Deepa Sharma, learned M.M., Delhi.
7. Counsel for the appellant further submits that during the said five pregnancies of the complainant, the appellant gave her best possible treatment from many private and government hospitals and incurred heavy expenses. Despite the said treatment, three pregnancies were pre termed on account of habitual abortions of still-born foetus/children and only two pregnancies could be saved, which were born at full term delivery. Learned counsel has placed reliance on the medical documents pertaining to the complainant in support of the plea raised by him with respect to her chronic disease and the treatment undergone by her. Learned counsel submits that on 25.8.1994, the complainant abruptly gave a statement in the Court of Sh.V.K. Malhotra, learned Guardian Judge, Delhi in the case filed by her under section 6 of the Hindu own accord without disclosing the real cause of withdrawal and concealed from the court the fact of her illegitimate sixth (6th ) pregnancy. Further, on 7.9.1994 the complainant gave her statement in the court of Ms.Deepa Sharma, learned M.M., Delhi in the case filed under section 125 Cr.P.C., and withdrew the same without giving any reason and concealing from the Court the fact of her illegitimate sixth pregnancy.
8. Learned counsel for the appellant has further submitted that it has been revealed from the medical records which includes the OPD record, OPD registration No. 20200/94 dated 05.09.1994 of the AIIMS Hospital, that the complainant had visited the said hospital for her medical check-up and treatment on 05.09.1994 i.e. two days prior to withdrawal of her case under Section 125 Cr.P.C. This document inter alia narrates the last menstrual period (08.06.1994), the expected date of delivery (15.03.1994) that the pregnancy was 12+5 weeks and the history of her previous pregnancy. It is further submitted that as revealed from another medical document, which is an out patient ticket-OPD No. 16089 dated 03.10.1994 from Safdarjung Hospital, the complainant had visited the said hospital on 03.10.1994 for her medical check up. This document discloses that the complainant has had two spontaneous abortion when the child was 06 and 07 months old. Medical records also shows that last menstruate period as 09th June, expected date of delivery-16.03.1995 and pregnancy - 12 to 14 weeks old.
9. Counsel for the appellant has submitted that the court records dated 05.09.1994 and 03.10.1994 have conclusively proved that during the pending trial of two cases i.e. under Section 6 of the Hindu Minority and Guardianship Act and under Section 125 Cr.P.C., while the complainant had been living separate from the appellant/husband and residing while at her parental house, the complainant developed illicit relations with another man and conceived illegitimate pregnancy around 09.06.1994, which in turn implies that the complainant was already 3 months pregnant as on 07.09.1994, when she had withdrawn her case under Section 125 Cr.P.C. The appellant was unaware and did not suspect her of an illicit relation and illegitimate pregnancy and was ready and willing to keep the complainant till 12.12.1994, on which date he came to know about her affairs and illegitimate pregnancy. Counsel for the appellant submits that on 12.12.1994 at around 04.00 pm, the complainant had suddenly visited the house of the appellant for the first time since she had left the house on 07.03.1992. The complainant persuaded the appellant, tendered an apology for her past mistakes as well as for dragging the appellant in unnecessary litigation and thereafter informed the appellant that she was suffering from ill-health and requested to provide her with medical treatment and further requested the appellant to keep her with him. The appellant agreed to keep her, however he simultaneously enquired about the treatment which the complainant had received from any other doctor and asked for her documents. On observing the medical papers, the appellant being a RMP Doctor came to know about the illegitimate complainant, the appellant declined to keep the complainant with him and asked her to go back. The complainant tried to forcibly enter the matrimonial house and threatened the appellant with dire consequences. Thereupon, the appellant in the presence of his neighbours, telephoned the PCR Van and soon thereafter the area police from Police Station Ambedkar Nagar arrived at the spot. The police took both the parties to Police Station, where the statement of both the parties was recorded. Subsequently, the complainant was sent back to her parental house and further directed that she should move the court of law, if she wanted to enter in the house of the appellant/husband, in view of the circumstance, under which she has conceived. However, only after two days after the above incident, on 14.12.1994, complainant filed yet another petition under Section 125 of Cr.P.C. wherein she narrated a false story in order to cover up her illegitimate pregnancy and stated that after the withdrawal of her first petition under Section 125 Cr.P.C. (which was withdrawn on 07.09.1994), the appellant had taken the complainant to his house. Counsel for the appellant submits that there are glaring inconsistencies in the testimony dated 12.04.1996 and 26.07.1996, of the complainant. At one stage, she has deposed that the appellant had taken her to his house on 13.09.1994 and at the subsequent stage she has deposed that the appellant had taken her from the Court on the same day on which the case was withdrawn i.e. on 07.09.1994 and thereafter she had stayed at the house of the appellant for about 1 month and during which period she conceived from the that a close scrutiny of her application under Section 125 Cr.P.C. dated 14.12.1994 and her testimony dated 12.04.1996 and 26.07.1996 shall reveal many other material contradictions. It is next submitted by counsel for the appellant that on 14.01.1995 at
2.30 a.m., as per the medical records and testimony of Doctors of AIIMS Hospital, the complainant had started suffering labour pain and bleeding per vagina at her parental house and therefore at
07.00 a.m. she was rushed to the Lady Harding Medical Hospital in a critical condition in a TSR, escorted by 4 persons which included, Smt. Rukma Devi (PW[3]), mother; her brother, Sh. Hem Raj (PW[4]); her sister-in-law and their landlady (name not disclosed). After having examined the complainant, who was in a critical condition, the doctors advised Smt. Rukma Devi to bring the appellant/husband to the hospital as there was a risk to the life of the complainant. It is further revealed that the husband was required to sign on some medical papers, as the complainant required immediate transfusion of blood, inasmuch as, the complainant had been profusely bleeding and that her life was in danger, according to the testimonies of PW[1], PW[3] and PW[4]. In such circumstances, the complainant escorted by the said four persons, viz., PW[3], PW[4], sister-in-law and their landlady was brought in the same TSR from Lady Harding Medical Hospital and while the complainant‟s sister-in-law and landlady had alighted from the TSR, on their way, to the appellant‟s house her brother (PW[4]) got down from the TSR at a distance of about 20 paces from the house of the appellant and only Smt. Rukma Devi (PW[3]) appellant. PW-3 told the complainant, “Yahin mar aur isko fasa. Hamaare ghar par vaapis mut aana”, and after about a minute, PW[3] while hurling abuses at the appellant returned in the same TSR and also picked up Hem Raj (PW[4]) and the landlady. It is submitted that when the complainant was brought to the house of the appellant, two to three neighbours had collected. In their presence complainant tried to enter in appellant‟s clinic and asked him to provide her medical treatment or take her to the hospital. As the appellant was already aware of the illegitimate pregnancy of the complainant, he refused to accede to the demand. Counsel for the appellant further submits that the appellant asked the complainant-“Why your mother and brother have brought and left you here. Why they did not take you to the Hospital and admitted there”. Then the appellant in consultation with his neighbours, immediately telephoned the PCR and soon thereafter area police from P.S. Ambedkar Nagar arrived at the spot. They took both parties to the Police Station. Counsel submits that the police demanded Rs.5000/- from the appellant, which he refused to pay. Then the appellant was allowed to go to his home and instead of taking her to the hospital complainant was detained at the police station. At about 10.00 a.m. (as per the hospital record) complainant was taken by the police to AIIMS Hospital and admitted there at 12.12 p.m. Counsel submits that there is no reason as to why complainant was detained for 2 hours at police station when her condition was serious or why she was taken to the police station at all when her condition was so critical. As per her MLC No. 3208/95 from AIIMS Hospital, the complainant was extensively examined by the doctors at AIIMS Hospital. As per Out-Patient Ticket-OPD No. C/425, dated 14.01.1995 from Safdarjung Hospital and Physical Examination Report No. 2967 dated 14.01.95 from Safdarjung Hospital, complainant was further medically examined at Safdarjung Hospital. Further, Discharge Summary Slip No. 2967 dated 16.01.95 from Safdarjung Hospital, indicates inter alia the hospitalization of complainant for only two days as against one month claimed. Counsel for the appellant submits that the appellant is an innocent person beyond any reasonable doubt and has been falsely implicated by the complainant in this fake and fabricated case in collusion with her parents, brother and the police with an evil ulterior motive to cover-up her illicit relations with another man, her resultant illegitimate pregnancy; and also to retaliate against the appellant/husband for his refusal to keep her after he came to know (on 12.12.1994) about her illegitimate pregnancy. Counsel submits that the appellant had neither assaulted nor beaten nor kicked the complainant either on 14.1.95 or on any other date prior to 14.01.95.
10. Learned counsel for the appellant further submits that the judgment passed by the trial court is erroneous inasmuch as, the trial court has taken full support of the statement of the appellant (accused before the trial court) and other defence witnesses to corroborate the testimony of prosecution witnesses, in utter disregard of the well established principal of criminal justice chronic patient of pre-term (spontaneous) habitual abortions of Still-born foetus/children since the very beginning of her first pregnancy till her last (6) pregnancy, which is the subject matter of the present case. Out of her six pregnancies, four of them had resulted in pre-term (spontaneous) still-born foetus/children and only two of them were born at full term delivery, and which too could only be saved because of the extensive regular treatment made available to the complainant by the appellant from many private doctors, nursing homes and government hospitals. Counsel submits that the said sixth pregnancy of the complainant also fell to the above said chronic disease. But the complainant in collusion with her parents, brother and the police fabricated a false case against the appellant in order to take revenge with the appellant, for his refusal to keep the complainant when he got to know about the illegitimate pregnancy.
11. Counsel for the appellant next submits that the complainant (PW-1) has stated that the appellant was/is keeping another lady (a nurse) as his wife, which is completely false inasmuch as, at one stage in cross-examination on 20.09.1996, complainant has deposed “I have seen that lady at Aligarh about 4-5 years back. I do not know where that lady residing at present. I started living in Delhi about 8-10 years back. I had seen that lady at the house of my maternal uncle (at Aligarh)”. Counsel submits that a close scrutiny of this testimony of PW[1] would reveal inherent inconsistencies and falsehood.
12. Counsel for the appellant lastly submits that there are many that it is settled law that if a witness makes even two inconsistent statements, the evidence of such a witness cannot be relied upon and no conviction can be based on such evidence. In support of this submission, counsel relies upon the case of Suraj Mal V/s. The State (Delhi Admn.) reported in AIR 1979 SC 1408. Counsel for the appellant submits that PW[1] in the FIR as well as in the examination-in-chief has concealed true facts inasmuch as, on 14.01.1995 (date of incident), she was residing at her parental house where she started suffering severe labour pain and bleeding per vagina at around 2.30 a.m.
13. Learned counsel for the appellant has submitted that prosecution has sought to corroborate its case on the evidence given by the mother and brother of Guddi, who are interested witnesses and as such their evidence cannot be relied upon. Counsel further submits that inspite of the presence of several neighbours at the time of the incident, no independent witness has been examined by the prosecution and therefore, the case of prosecution stands on weak legs. Learned counsel for the appellant further submits that it is very surprising that at the time when appellant allegedly kicked PW-1, she did not raise any alarm and the same is a very unnatural conduct on her part. Learned counsel has further sought to point out that PW-2 (Dr.Chander Kant of Safdarjung Hospital) has also deposed that there was no injury on the body of the still born child.
14. Per contra, leaned counsel for the State has submitted, at the outset, that the prosecution has been able to prove its case judgment passed by the trial court. Learned counsel submits that the presence of appellant at his house on 14.1.1995 (date of incident) is not disputed inasmuch as, appellant, Jhamman Lal has himself admitted in his statement under Section 313 Cr.P.C. as also in his statement as a defence witness that he was present in his house on the date of incident i.e. 14.01.1995. The appellant has also admitted that his wife had visited him in the morning of 14.01.1995 and further that there was a quarrel between him and his wife.
15. Counsel for the State submits that PW[1] (complainant) has categorically stated that the appellant had hit her on her stomach on the fateful day of 14.01.1995, consequent to which she gave birth to a still born child. It is submitted that the statement of PW[1] finds corroboration by the medical evidence as well. In the MLC, Ex. PW6/A it is specifically mentioned that the patient (PW-1) had been brought to the hospital with an alleged history of having been hit on her abdomen by her husband. Further in the post mortem report it has been mentioned that the cause of death was due to pre-mature delivery induced by application of blunt force. The post mortem report has been duly proved by Dr. Chander Kant (PW[2]) of Safdarjung Hospital, New Delhi.
16. Counsel for the State submits that even the defence witnesses have not supported the case of the prosecution. Rather the stand taken by defence witnesses lends credence to the case of the prosecution. DW[3], Dr. Poonam of AIIMS Hospital has categorically stated in her cross-examination that she had not case history. DW[3] further deposed that miscarriage and pre-term delivery is not a disease and there could be a number of reasons for the same including a hit upon the abdomen or high BP. On the basis of the documents shown to DW[3] in the court, DW[3] stated that the patient (complainant) was not a case of habitual abortion. Learned counsel for the state has pointed out that even DW[2], Dr. Mala Shukla of Safdarjung hospital has deposed in her crossexamination that she had not examined the patient personally and that she had no personal knowledge of the facts of the case. DW[2] also deposed that the original record was also not available with her. Counsel for the State submits that there is no merit in the present appeal and the same is to be dismissed.
17. I have heard learned counsel for the parties as well as carefully scrutinized the evidence and given my thoughtful consideration to the matter. The submissions of learned counsel for the appellant can be summarized as under: The appellant has been falsely implicated in this case. There are contradictions in the evidence of material witnesses inter alia PW-1, PW-3 and PW-4. Evidence of PW-3 and PW-4 are unreliable as they are interested witnesses. The trial court has failed to consider that he complainant (Guddi- PW[1]) was suffering from a chronic disease of habitual pre-term abortion and on three earlier occasions, she had given birth to a still born child. Medical evidence suggests that there was no injury on the body of the still born child. Admittedly, Guddi was critical and bleeding when she
18. The submissions of learned counsel for the State can be summarized as under: The case against the appellant has been established beyond any shadow of doubt. PW-1 (Guddi) has categorically stated that the appellant had kicked her in the stomach. Evidence of PW-1 has been duly supported by PW-3 (Hem Raj, brother of PW-1) Medical evidence also confirms the guilt of the appellant. Defence witnesses have also infact, supported the case of the prosecution.
19. The foremost submission of learned counsel for the appellant is that there are contradictions in the evidence of prosecution witnesses which go to the root of the matter and the deposition of PW-1, PW-3 and PW-4 cannot be relied upon. Counsel for the appellant has further submitted that even otherwise, the deposition of witnesses of the prosecution is to be read in conjunction with the surrounding circumstances, circumstantial evidence on record and the chain of events, which certainly confirm the innocence of the appellant.
20. PW-1 (Guddi), who is the complainant, has deposed in her examination-in-chief that after about five-six years of the marriage, appellant, Jhamman Lal started beating and harassing her, as he was having an extra marital affair with a lady, whose name she did not remember. PW-1 deposed that the appellant continued to harass and beat her and eventually threw her out of the house as he wanted to keep the other lady. Subsequently, PWmaintenance against the appellant upon which the court granted her a maintenance allowance of Rs. 500/- per month. After some time, appellant approached her for reconciliation but put a condition that he would accept her only in case she withdraws the petitioner for grant of maintenance. As per PW-1, therefore in the interest of her marriage and for the sake of her children, she withdrew the maintenance petition and started residing with the appellant. PW-1 further deposed that however only after about one and a half months, appellant started to beat and harass her and she left the matrimonial home. PW-1 has deposed that on 14.01.1995, she had visited the house of the appellant for taking her to the hospital, as she was suffering from labour pains. However, the appellant refused to take her to the hospital and further gave a kick blow on her stomach, due to which the child in her womb expired and she gave birth to a still born male child. PW-1 deposed that she was removed to the hospital by the police and that her statement (Ex.PW-1/A) bears her thumb mark at point „A‟. As per PW-1 she remained in the hospital for about a month. A careful analysis of the examination-in-chief of PW-1 along with her cross-examination and other material documents would however reveal that there are several contradictions in her deposition. I find that PW-1 had stated in her cross-examination that it was correct that she had withdrawn her application for grant of maintenance on 07.09.1994 and further voluntarily stated that she had withdrawn the same at the request of the appellant. As per PW-1, after withdrawing the case, the very same day she accompanied contrary to this, I find that in the FIR dated 15.01.1995 recorded at the instance of none other than PW-1 (Guddi) herself, it has been recorded, “karib 8-9 month pehle mere pati ne apni galti ka ehsaas karte hue aainda jhagda na karne ka aur mujhse apne saath rakhne ka waada karke mujhse adalat se mukadma uthwa liya aur mein 8 months pehle se apne pati aur bachchon ke saath rehne lagi”. A bare reading of this portion of the FIR dated 15.01.1995 would reveal that as per Guddi (PW-1), she had rejoined her matrimonial home on 15.5.1994 (approx.). This is in stark contradiction of her deposition before the Court where she had stated that she had rejoined her matrimonial home on 07.09.1994. However, the contradictions do not end here. On another occasion, PW-1 has deposed before the Court, that appellant had taken her to the matrimonial house on 13.09.1994. A close reading of the evidence of PW-1 would also reveal that initially PW-1 had stated in her cross-examination that it was incorrect that the appellant had given her best available treatment from the doctors of different hospital and nursing homes during her earlier pregnancies. However, in the cross-examination on 02.01.1997, PW-1 deposed that it was correct that she had been treated in the MLG Lady Dispensary, Aligarh in the year 1986 as well as in the year 1989. PW-1 admitted that she had also been treated at Batra Hospital in the year 1991 and also in Safdarjung Hospital. Strangely enough, PW-1 also deposed in her crossexamination on 02.01.1997 that about three (3) years before the filing of the case, she had delivered a still-born child because the Subsequently, PW-1 retracted from her statement and deposed in the cross-examination on the next day itself i.e. 03.01.1997, that the appellant had given her a leg blow on her stomach only during the last, i.e., sixth pregnancy. PW-1 further voluntarily stated that during the earlier pregnancies, the appellant had only beaten her. I also find that in the examination-in-chief, PW-1 has stated that after giving birth to a still-born child on 14.01.1995, she remained admitted in the hospital for about a month. Contrary to this, I find that the discharge slip of Safdarjung Hospital categorically mentions that the patient (PW-1) had been discharged from the hospital on 16.01.1995. i.e only after one day.
21. Further it is the case of the appellant that after PW-1 had left the matrimonial home on 07.03.1992, she had visited the appellant for the first time on 12.12.1994. Since, appellant got to know about her illegitimate pregnancy, he refused to allow her to rejoin the matrimonial home. Counsel for the appellant has submitted that at that point of time also, PW-1 had tried to forcibly enter the house and the appellant was compelled to call the police. It is submitted that since after two days only i.e. on 14.12.1994, PW-1 had filed a second petition under section 125, Cr.P.C., the same goes to show her revengeful attitude. On this point, I find that PW-1 has admitted in her cross-examination that as the appellant had refused to keep her in the matrimonial home, she had filed a second maintenance petition. In the crossexamination, PW-1 has categorically admitted that she had got pregnant six times and four of them resulted in still-born (dead 1/A, she had not mentioned the fact that about three years ago she had given birth to a still-born child. I find that PW-4 (brother of PW-1) has also deposed in his cross-examination that the second and fourth child of PW-1 had expired due to premature delivery. In my considered opinion, it is in the background of the above stated circumstances that the deposition of PW-1 is to be read. The statement of PW-1 alleging that the appellant had kicked her on her stomach, is not be read in isolation but has to be read and understood in the context of her deposition, which is otherwise full of contradictions. As a final Court of facts, reappraising the evidence, a duty is cast upon this court to also take into account the circumstances surrounding the alleged incident of 14.01.1995, which certainly point in the opposite direction. I find that there are inconsistencies in the statement of PW-1 as also with respect to the incident of 14.01.1995. In the cross-examination, PW-1 at the first instance has stated that she had never been to Lady Harding Hospital even once for check-up and that even on 14.01.1995, she had not visited the Lady Harding Hospital for her check-up. PW-1 further voluntarily stated that she had visited the Safdarjung Hospital. On the second instance, PW-1 deposed that she had stated in her complaint (Ex. PW-1/A) to the police that on 14.01.1995 she had visited the Lady Harding Hospital for her check-up, and where the doctor had asked her to call her husband. In view of the contradictory statements made by PW-1, learned trial Court was compelled to put a specific question to PW-1, „as to whether PW-1 had visited Lady Harding Hospital in the morning of establish that the sixth pregnancy of PW-1 was illegitimate. He has submitted that as per medical record dated 03.10.1994 of Safdarjung Hospital pertaining to Guddi (PW-1), she has had two spontaneous abortions when the child in her womb was six (6) and seven (7) months of age. Further as per that record, PW-1 was 12- 14 weeks pregnant and her expected date of delivery was mentioned as 16.03.1995. On this point, I find that PW-1 has admitted in her cross-examination that on 03.10.1994, she had visited Safdarjung Hospital for her medical check-up and further voluntarily stated that she had visited the hospital at the instance of the appellant. Since counsel for the appellant has not submitted a formal proof of the said medical record dated 03.10.1994, this Court cannot rely on the same to come to a finding that the child in the womb of Guddi did not belong to the appellant. However, at the same time I find that the MLC (Ex. PW-6/A) dated 14.01.1995 also mentions that Guddi was eight (8) months pregnant. If the time period as on the date of MLC (Ex. PW-6/A) is calculated backwards, it would reveal that Guddi (PW-1) conceived her sixth child (around whom the entire issue revolves) at around 14.05.1994. Further, as already reproduced above, it is PW-1‟s own deposition before the court that she had rejoined the matrimonial home with the appellant, on 07.09.1994 or on 13.09.1994. Accordingly, I find that there is evidence on record to suggest that at the time when complainant conceived her child, she was not residing with the appellant. It is also strange and unrealistic that the appellant would kicked the complainant in the prosecution has failed to produce a single witness from the neighbourhood to show that after the complainant was kicked in the stomach she cried out for help or anyone from the neighborhood to depose that they heard the complainant and her husband were quarreling or that she called out for help. Accordingly, in view of the inherent contradictions in the evidence given by PW-1, I find that PW-1 is not a reliable and trustworthy witness.
22. Counsel for the appellant has further contended that PW-3 and PW-4 are interested witnesses and, thus, cannot be relied upon. The Apex Court in the case of Ramanand Yadav Vs. Prabhu Nath Jha reported at (2003) 12 SCC 606, has held as under: “….. if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. …… If the materials show that there is a partisan approach, as indicated above, the court has to analyse the evidence with care and caution.”
23. Similar opinion was expressed by the Supreme Court in the case of State of Haryana Vs. Ram Singh reported at (2002) 2 SCC 426: “Admittedly all the supposed eyewitnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the court will be rather strict in its scrutiny as to the acceptability of such an evidence.”
24. Having regard to the observations of the Apex Court in the must be cautious and careful while weighing the evidence of witnesses who are interested witnesses. The evidence of such witnesses should be subjected to strict scrutiny and then Court is to come to a conclusion as to whether there is a ring of truth or there is reason for holding that the evidence was biased. Applying the settled law to the facts of this case, I find that PW-3 (Hem Raj), who is the brother of PW-1 and PW-4 (Smt. Rukma Devi), who is the mother of PW-1 have categorically deposed before the Court that on 14.01.1995, they had removed PW-1 to the hospital as her condition was very grim. PW-3, Smt. Rukma Devi (mother of PW-1) has further deposed in her examination-in-chief that she took her daughter to Lady Harding Medical Hospital and where the doctor called for the husband of PW-1 as certain registers were to be signed, and without which PW-1 could not be admitted in the hospital. In the cross-examination, PW-3 deposed that by the time PW-1 was taken to the hospital her condition had worsened and she had developed swelling and therefore the concerned doctor at the hospital refused to admit PW-1 and stated that the husband of PW-1 should at first be called and it is only when signatures of her husband are taken on the documents, PW-1 would be admitted. As per PW-3, the doctor had stated so after preliminary examination of her daughter and further opined that blood was to be transfused to her daughter. As per PW-3, the condition of her daughter was serious and that is why the doctor had asked them call the husband of her daughter. I also find that PW-4 (Hemraj, brother of PW-1) has voluntarily deposed in his cross-examination condition of PW-1 was very serious and she required immediate transfusion of blood, as she was also bleeding at that time. As per PW-4, PW-1 had swollen hands and feet, however PW-1 had not informed him as to for how long she was having swelling on her hands and feet. Thus I find that as per the deposition of both mother and brother of PW-1, the condition of PW-1 was serious and thus she was removed to the hospital and even before she had visited the house of the appellant. Further, I find that PW-3 has deposed before the Court that from the Lady Harding Medical Hospital, she took her daughter to the house of the appellant and after dropping her daughter, she immediately left the house and did not even stay there for a minute. On this point, I find that PW- 4 has deposed in his examination-in-chief that on 14.01.1995, from the Lady Harding Hospital, PW-1 herself went to the residence of the appellant to call him. However, during the crossexamination, PW-4 improved his statement and deposed that when the appellant gave a kick blow to his sister, he was also standing near the house of the appellant and that the appellant had given kick blow in his presence. In view of the contrary stands taken by PW-4, it would be relevant to closely read the evidence given by PW-1 in this regard. I find that PW-1 has categorically stated in her cross-examination that nobody was present in the house when she was allegedly kicked by the appellant on her stomach. Further PW-1 stated that she had been accompanied by her mother and sister-in-law to the house of the appellant, who had also left after dropping her at the house of the appellant. In contradictions, I find no merit in the submission of learned counsel for the State that PW-4 (Hemraj brother of PW-1), was an eyewitness to the alleged incident on 14.01.1995. I am further fortified in my opinion by the fact that PW-4 has deposed in his examination-in-chief that the mohallah people had collected there and asked the appellant to take PW-1 to the hospital immediately. Appellant informed the police at the request of mohallah people. In the meantime, as per PW-4, he went to the house to inform his parents about the incident and when he retuned, he found that PW-1 had already been removed to the hospital by a lady police. PW-4 further deposed that on the same day at about 10:00/11:00 p.m. two police men visited his house and informed that Guddi (PW-1) was lying in the hospital in a serious condition and that they should look after her. In my considered opinion, PW-4 has also shown a very unnatural conduct in view of the fact that PW-4 had initially deposed that his sister (PW-1) had developed stomach pain and whereafter they took her to the Lady Harding Hospital and in the hospital, doctor asked them to call the husband of his sister as she was in need of blood and was also very weak at that time. However, I find it to be very strange that when the appellant allegedly kicked PW-1, both the complainant as well as PW-4 failed to raise an alarm. Further, instead of either accompanying his sister to the Police Station or taking her to a hospital, he left to inform his parents. This is more so when PW-1 was already bleeding, was in severe pain, and after the alleged kick, her condition may have had further deteriorated. Although evidence of PW-4 does not inspire confidence. The conduct of PW- 4 is very unnatural that he would leave his sister wriggling in pain and also bleeding at the house of the appellant. Further if the evidence of PW-4 is to be believed, after informing his parents, he returned to the house of the appellant, where he got to know that PW-1 had already been removed to the hospital. However, it is not that thereafter, PW-4 went to the hospital to meet his sister and inquire about her health. It was only late in the night, that two policemen visited his house and asked him to visit the hospital. Further PW-4 has deposed that on the date of the incident, PW-1 was residing with the appellant. However, there is ample evidence on record to suggest that on 14.01.1995, PW-1 was not residing in her matrimonial home. In view of the above findings, I find that the evidence given by PW-4 (Hem Raj) is also not reliable. Once having held that the evidence of PW-4 cannot be believed, it cannot be concluded that PW-4 was an eye-witness to the incident.
25. I further find that even though, the witnesses of the prosecution have categorically deposed that PW-1 was extremely in a critical state of health and bleeding in the morning of 14.1.1995, in that case, I find that PW-1 would have either been admitted in the hospital by the mother (PW-3) while her son (PW-
4) could have requested the appellant to visit the hospital. The plea that necessary forms at the hospital were to be filled does not inspire confidence as the mother could have also filled the forms or at least PW-1 could have been admitted and PW-3 and hospital. Another factor which cannot be ignored is that the star witnesses of the prosecution have deposed that when PW-1 was taken to hospital she was critical, her hands and feet were swollen and she was bleeding, then why was PW-1 not admitted to the hospital and why was she made to travel in a three wheeler to the house of the appellant and left there at his mercy. The conduct of both the mother as well as the brother of PW-1 is highly unnatural and made up. It is also improbable that in case the PW-1 was so unwell the Doctor would have allowed her to leave the hospital.
26. From the evidence it is seen that it was none other than the appellant himself who had called the police. I find that had the appellant kicked PW-1, there was no reason for him to have called the police. Further, PW-8, SI Kishan Lal has deposed in his crossexamination that on 14.01.1995, he had asked the neighbors of the appellant about the incident of this case, and on enquiry he found that a quarrel had taken place between the appellant and his wife (PW-1), and that PW-1 had been removed to the hospital. I find that it is not the case of PW-8 that on enquiry he came to know that the appellant had kicked his wife, but he was only informed about a quarrel. There is also no explanation as to why no public witness or the neighbourhood who was questioned by PW-8 was not produced as a witness. I also find that an essential link in the chain of events has not been examined by the prosecution inasmuch as, PW-8 has stated in his crossexamination that he did not visit Lady Harding Hospital during the investigation of the case. When it has been the consistent stand of 14.01.1995, I find that it was imperative for the investigating officer to have visited the hospital and examined the concerned doctor. Having appreciated the evidence of prosecution witnesses, the circumstances and the background of the case, relying on the cardinal rule of criminal law that a person cannot be held guilty on mere probabilities. The evidence of witnesses or circumstances surrounding the incident should in a definite tendency and unerringly point towards the guilt of the accused. However, I find that there are several loopholes and contradictions in the witnesses adduced by the prosecution and the circumstances taken cumulatively do not form a complete chain so as to compel me to arrive at a finding that within all human probability the crime was committed by the accused.
27. I further find that the appellant has tried to supplement his case by adducing three defence witnesses. Although DW-2, Dr. Mala Shukla of Safdarjang Hospital has affirmed several medical records relied upon by the appellant, which categorically show that PW-1 had earlier given birth to still-born children, however, no formal proof was given to authenticate the medical records and as such they cannot be relied upon by this Court. However, as already observed above, PW-1 has herself admitted that she had given birth to still-born children. In the same vein, I find that DW[3], Dr. Poonam of the AIIMS Hospital has deposed that there can be several reasons for the birth of a still-born child and a hit on the abdomen is only one of such probable causes.
28. In order to verify the case of the prosecution, I have also relevant herein to reproduce the observations of a reputed author in the field of forensic evidence, Dr. K.S. Narayan Reddy, who in his book „the Essentials of Forensic Medicine and Toxicology’, 21st edition, 2002 in chapter 19- „Infant Deaths‟ has stated as under: “STILLBIRTH: a stillborn child is one, which is born after twenty eighth week of pregnancy, and which did not breathe or show any other signs of life, at any time after being completely born. The child was alive in utero, but dies during the process of birth. Stillbirths occur more frequently among ill legitimate and immature male children in primiparae. The incidence is about five percent. It is born in sterile condition, and as such, putrefaction occurs from without inwards, whereas in case of newborn child which lived for some time, the bacteria inside the body may cause putrefaction to start in the abdomen. Signs of prolonged labour, i.e. oedema and bleeding into the scalp, a caput succedaneum, and severe moulding of the head indicate stillbirth or death from natural causes shortly after birth. Common causes of stillbirth are: prematurity, anoxia of various types, birth trauma especially intracranial haemorrhage due to excessive moulding, placental abnormalities, toxaemias of pregnancy, erythroblastosis foetalis, and many types of congenital defects.”
29. I find that PW-6, Dr. R.K. Sharma, Head of the Department of Forensic Medicine, AIIMS, New Delhi who identified the MLC, Ex. PW6/A prepared and signed by Dr. Sandeep Aggarwal, has deposed that as per the MLC, Dr. Aggarwal had medically examined Guddi wife of Jhamman, when she was brought to the hospital by the police, with an alleged history of hit on abdomen by her husband at around 2:30 a.m. On that day, she was eight (8) months pregnant and was complaining of pain lower abdomen and was bleeding from the vagina. On examination pallor was present and her foetal heart sound was absent. There was on Ex. PW6/DA (Casualty card) stated that it was a case of abruption of placantae; foetal heart sound was absent; placantae was disrupted; and, patient was in distress and there was tenderness present on the abdomen suggesting of trauma to the pregnant woman. Although the opinion suggest that injuries as grievous were caused by blunt force, but this by itself cannot lead to the conclusion that it was caused by the appellant. As already observed above, it has not been proved beyond reasonable doubt that appellant, Jhamman Lal had kicked PW-1 on her stomach and which may have caused the death of the foetus. Moreover, a careful reading of the medical evidence would suggest that PW-1 was in distress and there was tenderness present on the abdomen suggesting of trauma. As per the observations of Dr. K.S. Narayan Reddy (supra), these factors may also cause the birth of a still-born child.
30. I also find that PW-2, Dr.Chander Kant had conducted the post mortem examination of the still-born male child and found that there were no external ante-mortem injuries on the body of still-born male child. If appellant had kicked PW-1 on her abdomen, there was very likelihood that the child may have had certain injuries which were visibly absent in this case. Further I find that the postmortem report, Ex. PW2/A, suffers from a major lacuna. As per the postmortem report, body was received for examination on 16.01.1995 at 2:30 p.m. and the date and hour of receipt of inquest papers was also 16.01.1995 at 2:30 p.m. The autopsy started on the same day at 2:33 p.m. and concluded at death to be about twenty eight (28) hours. Since as per the postmortem report, the approximate time of death was about twenty eight (28) hours, I find that death must have taken place at around 11:20 a.m. on 15.01.1995. However, as per PW-1, she had given birth to a still-born child on 14.01.1995. PW-3 has also deposed that police took her daughter to the Safdarjung Hospital where her daughter delivered a still-born child in the hospital at about 11:00 p.m. on that day i.e. on 14.01.1995. The death report of the child is dated 16.01.1995 and records the „date and hour of discovery of death‟ as 15.01.1995 at 10:00 a.m. However, it does not say as to when the death actually took place and only mentions about the discovery of death. Therefore, I find that PW-2 has grossly erred in opining the time of death and which certainly creates a doubt in the mind of this Court as to the veracity of the post-mortem report and as such the opinion of PW-2 that death may have occurred due to application of a blunt force cannot be accepted as gospel.
31. As a final court of facts, the High Court is entitled to reappraise the evidence and arrive at its own independent conclusion as to the guilt or innocence of the accused. This Court must thus be satisfied that the case of the prosecution is proved and that the guilt of the appellant has been established beyond reasonable doubt. It is only when the prosecution has proved its case beyond reasonable doubt that conviction cannot be disturbed in appeal. It will be useful to reproduce the observations of the Hon'ble Supreme Court in the case of Kali Ram Vs. State of Himachal Pradesh reported in AIR 1973 SC 2773 which are as follows: “Another Golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains 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, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, however is more apparent than real. It is no doubt true that wrongful acquittals are undesirable 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 there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether.
32. Having analysed the facts and circumstances of the case in view of the settled position of law and the rival contentions raised, I am of the firm opinion that it has not been established beyond reasonable doubt that appellant, Jhamman Lal had kicked his wife on her stomach on that fateful morning of 14.1.1995. There are contradictions in the evidence of prosecution witnesses, which go to the root of the matter. The circumstantial evidence is also inconsistent with the guilt of the accused. Further still, there are several anomalies in the medical evidence on record to which this court cannot turn a blind eye. In the ultimate analysis, I find that the trial court had committed a manifest error and not appreciated the facts and circumstances of this case in the right perspective. Accordingly, judgment dated 16.12.2000 and order on sentence dated 18.12.2000 passed by the learned Additional Sessions Judge, New Delhi, in Session Case No.138/96, is set aside.
33. Appeal is allowed. Bail bonds be cancelled. G.S. SISTANI J. December 24th „msr‟