DHARAMVEER Vs. STATE OF DELHI

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment dated 15th May, 2010, and Order on Sentence dated 1st June, 2010, whereby the learned Sessions Judge convicted the appellant under Section 323 IPC and under Section 304 Part-II and sentenced the appellant to undergo Rigorous Imprisonment for a period of one and a half year for the offence under section 304 Part-II and a fine of Rs. 500/- and the imprisonment for the period already undergone by the appellant for the offence under Section 323 IPC.

(2.) BRIEF facts relevant for the purpose of deciding this appeal are that Dharamveer (appellant) earlier used to live in the same colony where Smt. Amna, the deceased was living. The appellant therefore used to come to that colony occasionally. On 19th February, 2007, appellant had come to that colony and Parvej, aged three years, son of the Mohsina (complainant), was playing in the street outside the house. Complainant found that appellant was fondling with the penis of her son. She objected to this act of the appellant. The appellant on this started quarrelling with the complainant, abused her and assaulted her. In the mean time her mother in law Smt. Amna (deceased) came there and told her daughter-in-law to report the matter to police. On this, appellant first threatened and then assaulted Smt. Amna with a big stone on her head with the result that Smt. Amna received head injury. A call was made to PCR by someone and it seems that the appellant was apprehended there. Smt. Amna and Mohsina went to GTB Hospital for their checkup where their MLCs were prepared. While Mohsina received first aid, Amna appears to have left the Hospital without receiving first aid. She later on again was taken to GTB Hospital and the injury received by her on her head was dressed up. It appears that Amna, her son and her daughter-in-law did not realize the seriousness of the wound and instead of taking proper treatment, dressing was got done from local Doctor. However, Amnas condition became precarious on 25th February, 2007 and she breathed her last on 26th February, 2007. FIR against the appellant was registered by police on 25th February, 2007, when complainant went to police station and lodged report with the police. The appellant, who was earlier apprehended by the police and was left, perhaps thinking that it was a trivial matter, was again arrested. Postmortem report of the deceased showed that the cause of death was ante mortem head injury received by Mrs Amna. A charge-sheet was filed against the accused under Section 323/341/302/506 IPC. However, at the time of framing charge, the learned Sessions Judge charged the appellant under Section 323/304 Part-II of IPC.

(3.) THE prosecution case was proved by PW-3, Smt. Mohsina, the complainant who had objected to fondling of penis of her son by the appellant as well as a neighbour namely Nitin Sharma, PW-2, who was standing at the first floor of his house and had watched the incident. Both these witnesses testified to the fact that it was the appellant Dharamveer who picked up the quarrel with Mohsina on the issue of fondling penis of her son and it was appellant Dharamveer who started abusing and assaulting Mohsina first and when Mrs Amna, the mother in law of Mohsina came at the spot he assaulted her with a stone. PW-3 testified that when her mother in law told her that she should report the matter to police, the appellant picked up a stone and gave a blow on the head of Mohsina. THE presence of the appellant at the spot and the fact that the injuries were caused to Mrs Mohsina and Mrs Amna on 19th February, 2007, is further proved by DD No. 12 A, Ex. PW4/DA, wherein it was recorded that Operator of Control Room had given an information that one drunkard had hit a woman on head ( sarabi ne aurat ka sir phar diya hai) and he was caught on the spot. This DD entry, was handed over to Ct. Sohan Pal and HC Pramod for action. THE time of information is given as 5.40 pm. This document has been proved on record by the appellant himself. This document coupled with the testimony of PW-2, Nitin Sharma, shows that the appellant was in a drunkard state and he hit Mrs Amna on her head causing her head injury. HC Pramod appeared as PW-6 and he also testified that after receiving information vide DD No. 12A, he along with Ct. Om Prakash reached the place of occurrence and he was informed that both Mrs Mohsina and Mrs Amna had been taken to GTB Hospital. He stated that both ladies were in normal condition at that time, so, DD No. 12A was kept pending and FIR was registered on 25th February, 2007 when it was informed that Mrs Amna had become serious due to her head injury. PW-7 Ct. Sherpal Singh also testified about Mohsina and Amna reaching Hospital. It was thus proved before Trial Court beyond reasonable doubt that it was the appellant who caused injuries to Mohsina and Amna while he was in drunkard condition. Since the police did not think that the injuries were very serious and Mrs Amna and Mrs Mohsina did not pay much attention to the injuries and left the Hospital, the police did not register case nor other investigation was done and that explains why no stone etc. was picked up from the spot nor blood stained clothes of Amna were seized. However, non seizing of blood stained clothes or non picking up of stone does not weaken the case of prosecution since involvement of the appellant in the quarrelling and the fact that it was the appellant who had hit Amna had been proved otherwise by cogent evidence before the Trial Court.