OM PRAKASH Vs. STATE

JUDGEMENT

(1.) PRESENT appeal challenges the judgment dated 17th February 2009 and order on sentence dated 19th February 2009. The facts of the case unfold as under.

(2.) AS per the prosecution on 25th November 2004 life of a 16 months old girl named Bulbul came to an end as she was thrown against a wall by her own father, the appellant herein. Police Station Anand Parbat was informed of the incident on 25th November 2004 at 5:36 PM by the PCR. The information was recorded by DD No.17A, a copy thereof was handed over to ASI Subedeen who proceeded to the spot of the incident i.e. RC-111, Rajasthan Colony, Baba Farid Puri, Anand Parbat. On reaching the spot it was found that one Bittoo was sitting with the body of a small girl child in his lap. The mother of the child Geeta made a statement before the police that she was residing at the said address along with her daughter and Bittoo as she had a matrimonial discord with her husband Om Prakash. On the previous night i.e. 24.11.2004 the appellant had come to the house drunk and picked up a quarrel with her, asked her to restrain herself from living with Bittoo. One Hira @ Jhoola was also present who intervened in the matter. He was hit by the appellant on his head. On seeing that Hira had received injuries, Om Prakash i.e. the appellant ran away. On the fateful day, appellant again came to the house of Geeta at around 11:15 AM along with one Pradeep and started quarreling with her for the same reason that he would not tolerate her living with Bittoo. During the quarrel the appellant picked up her daughter and struck her head against a wall and then threw her on the ground. Seeing her bleeding from the mouth he ran away. Geeta lay down along with her daughter and slept and it was only around 4:30 PM she realized that the condition of her daughter was bad. She left her daughter Bulbul with Bittoo and went to one Tittoo who arranged for some money. On her return she found that police had arrived and her daughter had expired. ASI Subedeen sent a rukka from the spot on the basis of Geetas statement and got the FIR registered at Police Station Anand Parbat.

(3.) LEARNED counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt, the Trial Court has passed its judgment on conjectures and surmises, and the same is not supported with any legally admissible principles of law. Counsel further contends that the Trial Court failed to appreciate that no reliance could have been placed on the testimony of the prosecution witnesses as they are interested witnesses. The Trial Court has wrongly relied on the evidence of PW-7 Bittoo as he was not present at the spot nor he was an eye- witness. Counsel submits that the incident took place at 11:15 AM in the morning and till 4:30 PM no medical aid was provided to the victim and thus the appellant cannot be made responsible for the lapses on the part of the mother of the child. It is further contended that the story of the prosecution cannot be believed as there is gross delay in informing the police since the incident took place at 11:15 in the morning; the police was informed only at 5:35 in the evening. Counsel next contends that the Trial Court has failed to appreciate the evidence of Beena PW-3 who has deposed that the daughter was sitting in the lap of the husband and further stated that the room was taken on rent for Geeta and her husband and since the child was in the lap of Bittoo, he was responsible for the death of the child. Counsel also submits that there are contradictions in the evidence of various witnesses. According to PW-8 the blood was lying scattered when he visited the room whereas according to PW-7 he had wiped the blood from the floor. Counsel further submits in the alternative that at best the prosecution has been able to make out a case of culpable homicide not amounting to murder, the case of the prosecution does not fall under any of the class of Section 300 IPC. Reliance is placed by the learned counsel on para 5 of the decision rendered by a Division Bench of this Court in the case of Ashok Kumar v. State (NCT of Delhi) Crl.Appeal No.577/2005. Counsel relies on this judgment to show that although serious injuries were caused on the victim but it was held by the Division Bench that it was a case of culpable homicide not amounting to murder. Reliance is placed on para 35 and 36 which read as under:-