Crl.A.No.652/2009 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: May 14, 2010 Judgment delivered on: May 24, 2010 + CRIMINAL APPEAL NO.652/2009 DEEPAK KUMAR ....APPELLANT Through: Mr. Akshai Malik, Advocate/ Amicus Curiae Versus STATE(G.N.C.T.) OF DELHI .....RESPONDENT Through: Mr. Lovkesh Sawhney, APP CORAM: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE 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 Digest ? Yes AJIT BHARIHOKE, J. 1. Appellant Deepak Kumar has been convicted vide impugned judgment dated 27.4.2009 in Sessions Case No. 76/07, FIR No.327/07, P.S. Moti Nagar for murder of his 40 days old child under Section 302 IPC and sentenced in terms of order dated 29.4.2009 to undergo imprisonment for life and to pay fine of Rs. 2000/-. We may note that the learned Additional Sessions Judge has not awarded any sentence in the event of default of payment of fine. Feeling aggrieved by the impugned judgment and the order on sentence, Deepak Kumar has preferred this appeal. Crl.A.No.652/2009 Page 2 of 21 2. Briefly stated, case of the prosecution is that on 19.05.2007 at about 09:30 p.m., Head Constable Sukhbir, No. 2361 who was on duty at RML Hospital telephonically informed P.S. Moti Nagar that one child Umang son of Deepak has been admitted in the hospital in injured condition by his mother Deepika with the history of having sustained injury due to fall from hands. This information was recorded in Daily Diary register as Entry No. 36A. Copy of the DD report was entrusted to ASI Hari Chand (PW11). 3. On the receipt of the DD report, ASI Hari Chand (PW11) alongwith Constable Rakesh (PW10) went to RML Hospital and obtained the MLC of the child Umang who was found admitted there. He met Deepika, wife of Deepak i.e. mother of the injured child in the hospital and recorded her statement Ex.PW11/A. ASI Hari Chand sent that statement alongwith his endorsement to the police station for the registration of formal FIR and on the basis of said statement, formal FIR No. 327/07 was initially registered under Section 317/279/304 A IPC. 4. Complainant Deepika in her statement Ex.PW11/A stated that on 19.05.2007, she was present in her house No. WZ-480C, Basai Darapur alongwith her infant child Umang. At about 06:00 p.m., appellant Deepak came home after consuming liquor. She asked Deepak to give her money for expenses and the appellant Deepak saying “Tum Maro Ya Tumhara Bacha Mare” refused to give money for expenses. He started fighting with her and suddenly snatched the child Umang from Crl.A.No.652/2009 Page 3 of 21 the complainant and threw him in the street. On this, she ran outside to pick the child but in the meanwhile, motor cycle No. DL-7SAT-9489 (Black Colour) came at a fast speed and struck against the child. Thereafter, she alongwith her neighbour Nanno Devi (PW1) and motor cycle driver Rahul (PW2) took her injured child to Moti Nagar Hospital and from there to RML Hospital where her child succumbed to his injuries. 5. After recording the statement of the complainant, ASI Hari Chand (PW11) reached at the spot of occurrence. In the meanwhile, ASI Padam Singh (PW12) also reached there, who took over the investigation under the orders of the SHO. ASI Padam Singh prepared the site plan Ex.PW12/A on the pointing of the complainant. He recorded supplementary statement of Deepika and also the statements of PW1 Nanno Devi and ASI Hari Chand (PW11). The appellant was arrested by him later in the evening of 19.05.2007 from his residence. Dead body of the deceased was identified by the complainant and Nanno Devi (PW1). It was sent for post-mortem examination and after the post-mortem, the dead body was handed over to the relatives of the deceased. Further investigation of the case was taken over by Additional SHO, Inspector Raj Kumar (PW3) on 05.07.2007, who completed the formalities of investigation and filed charge sheet against the appellants requesting for his trial for the offence under Section 304 IPC. Crl.A.No.652/2009 Page 4 of 21 6. Learned Additional Sessions Judge, on consideration of the challan, charged the appellants for having committed the offence of murder punishable under Section 302 IPC. The appellant pleaded innocence and claimed to be tried. 7. In order to prove the guilt of the appellant, prosecution has examined 12 witnesses in all. Material witnesses who have given eye witness account of the occurrence are PW1 Nanno Devi and PW2 Rahul Sarin. The medical evidence is provided by PW6 Dr. Pawan Kumar, Medical Officer, RML Hospital, who prepared the MLC Ex.PW6/A of the deceased, Dr. Manpreet Kaur Sethi, Autopsy Surgeon (PW7), who conducted post-mortem examination on the dead body of the deceased and prepared the report Ex.PW7/A and PW8 Jaswant Singh, Medical Record Technician, RML Hospital, who has proved the complete case sheet pertaining to the treatment of Umang Ex.PW8/A. All other witnesses are police officials, who participated in investigation of the case at different stages after the occurrence. 8. The prosecution, however, could not examine complainant Deepika, who had left Delhi after the occurrence and could not be traced. 9. PW1 Nanno Devi has testified that on the relevant day i.e. about nine months prior to her examination in court, she was present in her house which is located across the gali on opposite side of the house of the complainant and the appellant. At around 06:00 p.m., a quarrel Crl.A.No.652/2009 Page 5 of 21 ensued between the appellant and his wife. Appellant was drunk and she noticed from her house that the appellant snatched the child Umang from his wife and threw the child out of the home on the road saying ‘Tu Mar, Tera Bacha Mar, Main Kharchae Ke Paise Nahi Dunga’. Thereafter, the appellant fled away on a scooter. She also stated that when the child was thrown out, a motor cycle was coming on the road but the motor cycle did not hit the child. In the cross-examination, she admitted that her house is located on the third floor of a building, whereas the house of the accused is located on the ground floor. She denied the suggestion given to her by the amicus that the child had been put on the road by the complainant Deepika or that while leaving the child on the road, she commented „let the child die‟. She also denied the suggestion that the child had sustained injuries because of the impact of the motor cycle. 10. PW2 Rahul Sarin has stated that on 19.05.2007 at about 06:00/06:15 p.m., he was going to Moti Nagar on his motor cycle No. DL-7SAT-9489. When his motor cycle reached in front of house No. WZ-480C Basai Darapur, a child was suddenly thrown out from the said house. The child landed in front of his bike and he immediately applied the brakes. The mother of the child immediately rushed out of the house. Some neighbours also collected there and PW1 Nanno Devi was one of them. He further stated that the appellant came out of the house. He was hurling abuses at his wife and child and he started his scooter and went away. According to this witness, the complainant Crl.A.No.652/2009 Page 6 of 21 Deepika told that accused was drunk and he had thrown the child outside the house. On humanitarian ground, he took the complainant and the child on his bike to the hospital. Later on, Nanno Devi (PW1) also reached there. He has also denied the suggestion that he had taken the child to the hospital on the asking of the complainant and other residents as he was at fault or that he had bribed the police to twist the facts. 11. PW7 Dr. Manpreet Kaur Sethi is the Autopsy Surgeon who conducted the post mortem on the body of the deceased. She observed following injuries on external and internal examination of the dead body: “1. Rub abrasion, irregular shape, redish on left knee 1 x 1 cm. 2. Abrasion 3x2 cm.m, present on right knee irregular, redish in colour. 3. Abrasion on front of right side upper abdomen at subcostal area 3x3 cm in size, irregular in shape. 4. Abrasion irregular in shape present on right side frontomedial aspect to dorsal aspect of right forearm in an area 10 cm.x3 to 4 Cm. 5. Swelling and deformity at right arm. On cut section fracture right humerus mid shaft with localised collection of hematoma at fracture site. On internal examination, following injuries were found:- 1. Head: Swelling in an area of 7x6 Cm at right side occipito-parietal region. On incision underneath right red coloured subscalp hematoma alongwith sub periosteal hematoma present along with fracture of parietal bone. (depressed type), subdural and subarachnoid hematoma underneath with corresponding contused brain matter. Blood vessels dilated and engorged. 2. Neck:- NAD. 3. Chest:- As mentioned and on incision-redish coloured hematoma collection present vertically in right side chest muscles extending from 3rd rib to 7th rib in an area of 14 Cmx3to4Cm and underneath 3rd, Crl.A.No.652/2009 Page 7 of 21 4th, 5th, 6th ribs found fractured at posterior axillary line with collection of hematoma locally. 4. Abdomen:- NAD with 15 ml. of curd inside the stomach with rancid smell”. 12. She opined the cause of death as the result of craniocerebral damage (head injury) which was sufficient to cause death in ordinary course of nature and according to her, all the injuries were fresh in time and ante-mortem in nature. She opined the nature of the death to be homicide. In cross-examination by learned amicus, she specifically denied the suggestion that the injuries found on the person of the deceased could have been caused by the impact of a speedy motor cycle. 13. Appellant Deepak Kumar in his examination under Section 313 Cr.P.C. denied the prosecution version and explained thus: “Q.29......... Ans. I am innocent. I have been implicated falsely. I left my wife and child at home, I had clothes for embroidery work for customers and I left the home on my scooter. I came back to my residence at about 9.30 pm, there was gathering of crowd. I was apprised that my child received injuries in an accident and child has been taken to the hospital. I went to hospital in Hari Nagar where I did not find any child. I came back to my home and in the meantime, I received telephonic call on the mobile phone, since my wife’s mobile phone was with me that all the persons have come to home and I shall also come home. The persons who called me on the mobile phone, there was a female voice. Then I came to my residence. When I reached my residence, my wife was at home, Nanno was also present but my child was not there. I inquired about my child and I was apprised that he was admitted in the hospital. I was arrested by the police at about 11/11.30 pm on 19.05.2007 and I have been implicated falsely. I do not want to produce any witness in defence”. 14. The learned Trial Judge, on consideration of the material on record and the submissions made on behalf of the rival parties, found Crl.A.No.652/2009 Page 8 of 21 the appellant guilty of murder of child Umang mainly on the strength of testimony of PW1 Nanno Devi and PW2 Rahul Sarin and convicted the appellant under Section 302 IPC. 15. Defence of the appellant is that he has been falsely implicated and he was not even present at the place of occurrence when the incident took place. Learned amicus curiae has submitted that the instant case has been registered on the complaint Ex.PW11/A of Deepika, mother of the child who claimed to be the only person present in the room when the child was thrown out in the street by the appellant. Thus, she was the best witness to prove the charge. However, prosecution has failed to produce her and this fact, by itself, is sufficient to extend the benefit of doubt to the appellant. 16. We are not convinced with the argument. On perusal of the record, it is clear that prosecution cannot be faulted for non- examination of the complainant Deepika as a witness as she could not be produced as she was not available at the given address. Ex.PW5/B is the service report dated 07.01.2009 pertaining to the summons issued by the court for appearance of complainant Deepika as a witness. In this report, ASI Padam Singh of P.S. Moti Nagar has stated that he visited the address at District Jalpaigudi, West Bengal on 05.12.2008 to serve the summons on Deepika at the residence of her maternal uncle Suleman where he met Mr. Suleman and his wife Anees Mins who told him that Deepika was daughter of late sister of Suleman. Crl.A.No.652/2009 Page 9 of 21 Deepika had visited the village nine months earlier, thereafter she left the village without leaving her address at Delhi and they assured that as and when she would visit the village, they would tell her about the summons. From the aforesaid service report, it is obvious that despite of efforts made by the prosecution to procure the presence of Deepika as a witness she could not be served with the summons for want of her current address. Since non-production of Deepika as a witness was beyond the control of the prosecution, it cannot be taken as a circumstance to outrightly reject the testimony of the other two eye witnesses examined by the prosecution, namely, PW1 Nanno Devi and PW2 Rahul Sarin. 17. Learned amicus curiae has criticised the testimony of PW1 Nanno Devi on the ground that as per her own admission, she could not have been the eye witness to the occurrence. Dilating on the argument, learned amicus curiae submitted that as per the testimony of PW1 Nanno Devi, the appellant and his wife Deepika were residing on the ground floor of a building on one side of the street and her house was located at the third floor of another building across the street opposite the house of the appellant. He submitted that Nanno Devi claims to have heard the appellant uttering the words ”‘Tu Mar, Tera Bacha Mar, Main Kharchae Ke Paise Nahi Dunga” and she also saw him throwing the child Umang out on the street immediately after uttering those words. This, according to learned amicus curiae, is an impossibility, given the location of the house of Nanno Devi. Thus, he has contended Crl.A.No.652/2009 Page 10 of 21 that it is not safe to rely upon the testimony of Nanno Devi. Regarding testimony of PW2 Rahul Sarin, learned amicus curiae has submitted that he also is not a reliable witness because he obviously had a reason to falsely depose against the appellant in order to save his own skin. In support of this contention, he has drawn our attention to the FIR of this case Ex.PW9/C which was initially registered under Section 317/279/304A IPC, which tended to implicate the witness for causing death of Umang due to rash and negligent driving. 18. We do not find merit in this contention. In order to properly appreciate the criticism of the amicus curiae against the testimony of PW2 Rahul Sarin, it is necessary to have a look on the contents of the FIR. The FIR was recorded on the basis of statement made by Deepika, mother of the deceased child wherein she had stated that on the fateful evening of 19.05.07 at about 06:00 p.m., when she asked money for expenses from her husband i.e. the appellant, he refused to give her money and said “Tum Maro Ya Tumhara Bacha Mare” and started fighting with her and he suddenly snatched the child Umang from her and threw him in the street. On this, she (the complainant) rushed outside to pick her child but in the meanwhile, motorcycle DL- 7SAT-9489 came at a fast speed and struck against the child. Thereafter, she took the child alongwith the motorcycle driver Rahul Sarin to the hospital where the child was declared dead. From the aforesaid facts narrated in the FIR, there could be no doubt about the presence of PW2 Rahul Sarin at the spot when the child was thrown in Crl.A.No.652/2009 Page 11 of 21 the street. From the FIR, it is also clear that by no stretch of imagination, Rahul Sarin could be faulted for the incident even if his motorcycle had actually struck the child because as per the facts narrated in the FIR, the child was suddenly thrown in the street and PW2 Rahul Sarin could not have comprehended that someone would throw the child in front of his motorcycle. Thus, under the given facts, PW2 Rahul Sarin was not under threat of being held responsible for the death of Umang to prompt him to depose falsely against the appellant. Thus, we find no reason to suspect his version. On the other hand, the contents of the FIR do tend to show his presence at the spot at the time of occurrence. 19. Coming to the testimony of PW1 Nanno Devi. As referred to above, she testified in the Court that she saw the incident of throwing of child by the appellant from her third floor room and she also heard appellant uttering ”‘Tu Mar, Tera Bacha Mar, Main Kharchae Ke Paise Nahi Dunga”. Contention of learned amicus curiae is that PW1 Nanno Devi being at third floor of the building across the street could not have heard the above utterances by the appellant from such a distance. Under normal circumstances, this contention may hold force, but whether or not Nanno Devi could have heard said utterances depended upon the decibel level of speech of the appellant when he uttered those words. From the material on record, it is obvious that the appellant had uttered those words while he was having an argument regarding household expenses with his wife Deepika. Crl.A.No.652/2009 Page 12 of 21 Therefore, it is not surprising that he uttered those words in a loud voice which could be overheard by PW1 Nanno Devi. As regards the other limb of argument that Nanno Devi could not have seen the appellant throwing the child outside the room, it is suffice to say that it would depend upon the width of the street and the fact whether or not there was any building or structure within the line of vision from the third floor room of Nanno Devi to the room in which the occurrence took place. Of course, the Site Plan Ex.PW12/A proved on record by the Investigating Officer leaves much to be desired and it does not show the location of houses of the appellant and the witness Nanno Devi (PW1), but this by itself cannot be taken as a circumstance to discard the testimony of the otherwise reliable witness PW1 Nanno Devi, which finds corroboration from the testimony of PW2 Rahul Sarin who has stated that Nanno Devi was amongst the persons who immediately collected at the spot. We may note that, according to the Nanno Devi, she had overheard the argument between the appellant and his wife. Therefore, it is not surprising that on hearing the utterance by the appellant in an angry tone, as a matter of curiosity PW1 Nanno Devi tried to see what was happening and was able to see the appellant throwing the child on the street. Thus, under the circumstances, we find no reason to suspect the testimony of PWs Nanno Devi and Rahul Sarin. 20. Even if, for the sake of argument, it is assumed that Nanno Devi did not see the appellant throwing the child on the street, the fact Crl.A.No.652/2009 Page 13 of 21 remains that as per the statement of Rahul Sarin (PW2) and Nanno Devi (PW1), immediately after the occurrence, the appellant came out of the house and went away on his two-wheeler scooter. The aforesaid conduct of the appellant by itself points towards the guilt of the appellant. Had he not thrown the child on the street, under the natural course of circumstances, he was expected to rush and pick up his child from the street instead of escaping from the place of occurrence. 21. There is one more aspect to this case. The appellant in his statement under Section 313 Cr.P.C. took the defence that at the time of occurrence, he was not present at the spot and actually he had left his house at 05:30 p.m. for his work. His explanation is that he had left his wife and child at home as he had clothes for embroidery work for customers. If this explanation was true, then the appellant could easily have examined anyone of those customers whom he had visited on the fateful evening to substantiate his defence. He, however, has not produced any witness to establish this half-hearted plea of alibi. This circumstance also goes against the appellant. 22. It is further submitted by learned amicus curiae that actual cause of death of child Umang is doubtful in this case. Dilating on the argument, learned amicus curiae took us through the cross- examination of PW6 Dr. Pawan Kumar of RML Hospital who prepared the MLC of the deceased and who testified that the injuries found on the person of the deceased could have been due to fall or due to Crl.A.No.652/2009 Page 14 of 21 impact of some vehicle or a hard blunt substance. Learned amicus curiae submitted that from this, a possibility cannot be ruled out that the deceased Umang sustained fatal injuries due to fall from hands, which fact is also recorded in DD No.36A(Ex.PW5/A) recorded at the Police Station on the basis of information conveyed on telephone by Head Constable Sukhbir who was on duty at RML Hospital at the relevant time. Learned amicus curiae, in view of the aforesaid facts, has urged us to extend the benefit of doubt to the appellant because a possibility of the deceased having suffered injuries by fall from hands cannot be ruled out and also because the complainant Deepika, who was the best witness in this case, has not been produced as a witness to clarify the position. 23. We are not convinced with the above argument. As regards the facts referred in DD No. 36A (Ex.PW5/A), it is suffice to say that this information is recorded by the Duty Officer in Daily Diary on the basis of information given by Head Constable Sukhbir who was on duty at RML Hospital. Head Constable Sukhbir is not an eye witness, therefore, the content of DD report is nothing but a hearsay evidence which is inadmissible. Otherwise also, it is not clear in the DD report as to what is the basis of this information. Thus, no importance can be attached to this fact. Even the above referred version of Dr. Pawan Kumar regarding the possible cause of the injuries sustained by the child Umang also does not help the appellant because it is only an opinion and does not rule out the possibility of the child having Crl.A.No.652/2009 Page 15 of 21 suffered fatal injuries because of having been thrown in the street by the appellant. The testimony of PW1 Nanno Devi and PW2 Rahul Sarin referred to above, in our considered view, firmly establishes that it was the appellant who had thrown the child Umang from the room into the street which resulted in fatal injuries to the child. Thus, we find no merit in the above contention. 24. Further, it is argued that as per the testimony of Dr. Pawan Kumar, a possibility cannot be ruled out that the child had died due to injuries sustained on being hit by the motorcycle, therefore, the appellant cannot be held guilty for murder of child and he is entitled to benefit of