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2006 DIGILAW 2036 (DEL)

JAGDISH KHEM CHAND v. THE STATE (NCT OF DELHI)

2006-11-08

ARUNA SURESH, MADAN B.LOKUR

body2006
MADAN B. LOKUR, J. ( 1 ) THESE appeals are directed against a common judgment and order dated 4th september, 2000 whereby the learned Additional Sessions Judge convicted the appellants for offences punishable under Sections 302/120b/201/203/34 of the indian Penal Code (IPC) in Sessions Case No. 20/99. By an order passed on the same date, the Appellants were sentenced to imprisonment for life for the offence punishable under Section 302/34 of the IPC. They were also directed to pay a fine of Rs. 5,000/- and in default thereof to undergo simple imprisonment for one month each. The Appellants were also sentenced for varying terms for the offences committed by them and punishable under other sections of the IPC. ( 2 ) THE broad facts of the case disclose that one lady Saroj was married to vijay and they had three children from the wedlock. One of the children was sonu @ Lakshmi. Saroj appears to have left Vijay and began living with the appellant Jagdish. Saroj and Jagdish had four children out of which only two of them survived. ( 3 ) AT some point of time, Saroj discovered that Jagdish had developed illicit relations with Sonu @ Lakshmi and she, therefore, left Jagdish but Sonu @ Lakshmi continued to live with him. In fact, Jagdish fathered a child with sonu @ Lakshmi and it is this child who was about 21 days old when both the accused persons allegedly killed it. ( 4 ) IT is necessary to mention that Sonu @ Lakshmi had filed a complaint against Babu, her maternal uncle and brother of Saroj that he had raped her. We are told that during the pendency of these proceedings, Babu was acquitted of the offence. ( 5 ) BE that as it may, the allegation of the prosecution is that on 31st december, 1997, Jagdish and Sonu @ Lakshmi came to the police station at Nand nagri with an allegation that Saroj, her two brothers Kallu and Leelu and Sangam @ Asha, wife of Babu had beaten up Sonu @ Lakshmi and had thrown the infant on the ground. ( 6 ) ON the basis of these allegations, the officer in the police station pw-7 SI Narender Kumar took Sonu @ Lakshmi for a medical examination and it was reported that she had no injuries and that the infant was brought dead. ( 6 ) ON the basis of these allegations, the officer in the police station pw-7 SI Narender Kumar took Sonu @ Lakshmi for a medical examination and it was reported that she had no injuries and that the infant was brought dead. On 2nd january, 1998, a post mortem examination was carried out on the infant and as per the post mortem report, the infant had multiple bruises around the inner surface of upper lip and fracture of the ribs on the right side. The cause of death was indicated as asphyxia as a result of blockage of respiratory passage at the level of mouth and nostrils. The injuries were ante mortem caused by blunt force impact, that is, by pressing some object over the areas. ( 7 ) ON 7th January, 1998 a First Information Report was registered against both the Appellants and investigations carried on. On 8th October, 1998 the appellants were arrested. After investigations were complete, a charge sheet was filed against them and they were charged with a criminal conspiracy to murder Baby Sonu aged 21 days and to hide the offence and put the blame on Babu and others after lodging a false report. The Appellants denied the charges and claimed trial. ( 8 ) THE case that had been put up by Jagdish was that he had gone to Meet nagar and when he came back to his home, he learnt that Sonu @ Lakshmi had been beaten up by her maternal uncles and aunt and about the death of the infant. In other words, he completely denied knowledge of what had happened. In so far as sonu @ Lakshmi is concerned, the story that she put up was that she had gone to the toilet and when she came back, she saw her maternal uncles and aunt beat up the infant. She tried to wake up the infant but it did not respond. ( 9 ) ON the other hand, when both the Appellants had gone to the police station at Nand Nagri, they had informed the authorities that Saroj and her two brothers Kallu and Leelu and Sangam @ Asha, wife of Babu and other persons had come to their house and had beaten up Sonu @ Lakshmi and had thrown the infant on the ground. In other words, three different versions have been placed before us. In other words, three different versions have been placed before us. ( 10 ) SURPRISINGLY, the post mortem report, although marked as Exh. PW-7/h, was not proved. The doctor who prepared the post mortem report was not brought to the witness box. PW-1 Dr. A. K. Tyagi stated that he had merely countersigned the report at Point 'a' and that Dr. Wahi had conducted the post mortem and prepared the report. He did not identify the handwriting or the signatures of the doctor who had prepared the post mortem report. Similarly, PW-7 SI Narender singh Chauhan merely stated that he had collected the post mortem report (apparently from the hospital ). Other than that, he did not depose anything else on this subject. ( 11 ) LEARNED Amicus Curiae cited Munna Kumar v. State of Bihar, (2005) 12 scc 299 in which the post mortem report was not proved either by examining the doctor who prepared it or by examining any other person acquainted with the handwriting of the doctor. The post mortem report in that case was produced by the advocate?s clerk - in the present case it was produced by PW-7 who had merely collected it perhaps from the hospital. The Supreme Court held that clearly the post mortem report was not proved as per the prescribed procedure and consequently the contention of learned counsel for the appellant therein was accepted to the extent that the prosecution had failed to prove the offence of murder against the appellant. Following the decision of the Supreme Court, we are of the view that the post mortem report was not proved in this case in accordance with law and no weight can be given to it. ( 12 ) THERE is no legal evidence on record to show how the infant died. It could have been smothered to death by the Appellants as contended by learned counsel for the State and, on the other hand, Saroj, her brothers and her sister-in-law could have also killed it. We cannot say for sure. Obviously, some force was applied to kill the infant and which is why it had a fractured rib and died of asphyxia but whether the death of the infant was caused by the appellants as alleged by the prosecution or by somebody else is not at all clear and the evidence in this regard is completely absent. Obviously, some force was applied to kill the infant and which is why it had a fractured rib and died of asphyxia but whether the death of the infant was caused by the appellants as alleged by the prosecution or by somebody else is not at all clear and the evidence in this regard is completely absent. ( 13 ) THE prosecution had examined Sangam @ Asha, wife of Babu as PW-3 but she denied any knowledge about the incident concerning the death of the infant. Similarly, the prosecution examined Leelu, the brother of Saroj and maternal uncle of Sonu @ Lakshmi as PW-4 and he also denied knowing anything about the incident which is said to have taken place on 31st December, 1997. Kallu, another brother of Saroj and maternal uncle of Sonu @ Lakshmi also denied any knowledge of the incident of 31st December, 1997 and stated that in fact he came to know about the death of the infant only through the newspapers. Saroj, the mother of Sonu @ Lakshmi was examined by the prosecution as PW-10. She also completely denied any knowledge of the events of 31st December, 1997. One neighbour of Jagdish was examined by the prosecution as PW-2 (Sheela) who went to the extent of stating that she did not even know Jagdish but when she was cross-examined by the learned Additional Public Prosecutor, she admitted knowing him but she also turned hostile and denied knowledge of the events of 31st december, 1997. ( 14 ) THE Appellants were arrested after about a year of the registration of the case on oral confession made before the investigating officer when they had allegedly gone to the police station to enquire about the investigation of the case. There is no other evidence to connect the Appellants with the commission of the offence. The alleged confessional statement was also not recorded by the investigating officer nor was it got recorded by the concerned magistrate. In the absence of any evidence, let alone cogent evidence to connect both the appellants, or either of them, with the death of the infant, it is not possible for us to sustain the conviction. They are entitled to the benefit of doubt, as contended by the learned Amicus Curiae. Under the circumstances, the appeals are allowed and the conviction of the Appellants on all counts is set aside. They are entitled to the benefit of doubt, as contended by the learned Amicus Curiae. Under the circumstances, the appeals are allowed and the conviction of the Appellants on all counts is set aside. ( 15 ) WE must record our complete dissatisfaction over the manner in which the police conducted investigations in this particular case. Whatever may be the conduct of Sonu @ Lakshmi and Jagdish, the fact of the matter is that an innocent life has been lost. The police adopted a completely lacklustre approach and even though the post mortem report in respect of the death of the infant was available on 2nd January, 1998, the FIR was registered only on 7th january, 1998. Investigations into this case took almost a year and the appellants were arrested only on 8th December, 1998. To make matters worse, the post mortem report was not even proved by the prosecution. Under these circumstances, we are of the view that the prosecution is completely to be blamed for mishandling the entire case. ( 16 ) LEARNED Amicus Curiae has put in considerable efforts in the matter. We, consequently, direct the State to pay him a fee of Rs. 3,300/- (one set) for the efforts that he has put in. The fees be paid to the learned Amicus Curiae within six weeks from today. ( 17 ) THE Appellant Sonu @ Lakshmi is on bail. Her bail bond stands cancelled. The Appellant Jagdish is in jail. He should be set at liberty forthwith, if not required in connection with any other case.