Dalip vs State Gnct Of Delhi
2014 Latest Caselaw 978 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : February 19, 2014
                                DECIDED ON : February 21, 2014

+      CRL.A. 1343/2012 & Crl.M.B.No.406/2014

       DALIP
                                                         ..... Appellant
                          Through : Mr.Sandeep Thakur, Advocate.

                          VERSUS

       STATE GNCT OF DELHI
                                                       ..... Respondent
                          Through : Mr.Lovkesh Sawhney, APP for the
                                   State.
       CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 2.11.2012 of

learned Additional Sessions Judge in Sessions Case No.40/11 arising out

of FIR No.134/11 registered at Police Station Nabi Karim by which the

appellant-Dalip was held guilty for committing offences under Sections

315/323 IPC and awarded rigorous imprisonment for five years under

Section 315 and rigorous imprisonment for six months under Section 323

IPC. Both the sentences were to operate concurrently.

2. The prosecution case, as projected in the charge-sheet, was

that in a quarrel on 04.08.2011, Dalip hit a leg blow on the stomach of his

sister-in-law Reena with an intention to prevent the child from being born

alive. He also caused injuries to her husband Parveen. During the course

of investigation, statements of witnesses conversant with the facts were

recorded. MLC of the victim was collected. The accused was arrested

and charge-sheeted. In 313 statement, he denied his complicity in the

crime and examined his mother DW-1 (Munni Devi) in defence. The trial

resulted in his conviction for the offences mentioned aforesaid. Being

aggrieved and dissatisfied, the appellant has filed the appeal.

3. I have heard the counsel for the parties and have examined

the record. The appellant and the victim are closely related to each other.

Reena-complainant is the wife of Praveen (appellant's brother). They all

lived at House No.523, Gali No.1, Krishna Basti, Amar Puri, Nabi Karim

on the day of incident. The top floor was in the occupation of the

complainant and her family. The accused and his parents lived on the

third floor. On a trivial issue, an altercation took place between Praveen

and Dalip and his parents when Praveen while under the influence of

liquor intended to go upstairs with shoes smeared in mud. It is alleged

that in the said scuffle, Dalip hit on the nose of Praveen and he started

bleeding. The complainant-Reena came down-stairs on hearing the

commotion and intervened to rescue her husband. It is alleged that the

appellant gave a leg blow on her abdomen. The facts further reveal that

no complaint was lodged for the said incident with the police. The

complainant took her husband Praveen to Lady Harding Medical College

at around 11.40 P.M. where he was medically examined vide MLC

(Ex.PW-1/A) by PW-1 (Dr.Shakuntla). The nature of injuries was

ascertained 'simple caused by blunt object.' It appears that on the night

intervening 4/5-8-2011, complainant-Reena developed some

complications and started bleeding. She was taken to Lady Harding

Medical Collecge by her husband-Praveen on 05.08.2011 at around 07.00

p.m. and was medically examined vide MLC (Ex.PW-2/A) by Dr.Seema.

On examination, she found that there were no external injury but bleeding

per vagina was there. PW-4 (Dr.Richa Aggarwal) examined her on

06.08.2011. Ultrasound report was suggestive of incomplete abortion

with retained product of conception. On 06.08.2011 after recording

Reena's statement (Ex.PW-5/A), the investigating officer lodged First

Information Report by sending rukka (Ex.PW-12/B) at 10.10.p.m. In the

complaint, she disclosed that leg blow on her stomach was given by the

appellant with an intention to cause miscarriage.

4. The crucial aspect to be ascertained is whether there was any

nexus between the leg blow inflicted on the abdomen of the victim and the

consequent abortion. The prosecution could not establish that ingredients

of Section 315 IPC were made out or proved. Nothing has come on record

to show as to what was the exact duration of pregnancy of the

complainant or that this fact was known to the appellant. It is on record

that relations between the parties were hostile and they had lodged

complaints against each other. Earlier the victim with her family was

residing in a rented accommodation. After the accident of her husband,

she shifted to the premises in question on 10.02.2011. The relations

became more strained after her shifting in the said accommodation. The

complainant lodged complaint (Ex.PW-5/DB) on 11.05.2011 against the

appellant and her in-laws. She alleged disconnection of electricity and

water connection by them. She alleged that her brother-in-law gave her

leg blow on her abdomen and as a result of which she suffered abortion.

No action was taken by the police on the said complaint and no FIR

against the appellant or his parents was registered. Complainant could not

establish that prior to 11.05.2011 she had suffered any abortion due to the

leg blow given by the appellant. The occurrence dated 04.08.2011

happened subsequent to that and again the complainant leveled similar

allegations against him for causing abortion. It has come on record that

the complainant had given birth to a still born child earlier in 2008 and she

has cesarean deliveries at the time of birth of two children. PW-3

(Dr.Seema) categorically stated that she did not notice any external injury

on the body of the complainant in MLC (Ex.PW2/A). She did not give

any specific opinion if the abortion was the result of the leg blow given to

the complainant. The record reveals that the Investigating Officer had

specifically sought opinion from the doctor if there was any connection

between the abortion and the leg blow but no such definite opinion was

given. There was no swelling or scratch mark on the abdomen. The

complainant was hale and hearty at the time of occurrence and had taken

her husband Praveen to the hospital. She did not lodge any complaint

with the police on that day or on 05.08.2011. The delay in lodging the

report on 06.08.2011 in the evening has not been explained.

5. Intention is, one of the major ingredients of Section 315. To

attract and prove Section 315 IPC, the act of the accused must have been

done with the intent of causing the miscarriage of a woman with a child.

The criminal liability envisaged by this Section will not extend to a case

where the abortion/miscarriage was caused by totally extraneous factors

or ones which were not directly connected with it. The prosecution is

required to prove beyond reasonable doubt that it was that very act which

ultimately caused the miscarriage, that is, nexus between acts done by the

accused and the miscarriage must be direct. The accused must be in the

know of the fact that the lady was in the family way having pregnancy. In

the instant case, nothing emerged if the appellant, who was the brother-in-

law of the victim, was aware of the pregnancy of the victim. The relations

were strained and there was least possibility of complainant and her

husband to share this development with him specifically when the

duration of pregnancy was very short. The occurrence had taken place all

of a sudden when appellant's mother objected to her son Praveen going

upstairs with dirty shoes. Arrival of the complainant at the spot to

intervene was not anticipated. In the scuffle she allegedly suffered a leg

blow on her intervention. It did not cause any immediate pain or bleeding

to the complainant. The prosecution was unable to establish that the

abortion was the result of leg blow or that the criminal act of assault was

done intentionally or deliberately to prevent the child from being born

alive. The conviction of the appellant under Section 315 IPC was not

permissible and cannot be sustained.

6. Nominal roll dated 12.03.2013 reveals that the appellant has

suffered detention for eight months and seventy seven days besides

earning remission for one month and twenty days as on 16.03.2013. He is

not involved in any criminal case and has clean antecedents. Appellant's

counsel has produced on record Annexure P-1 to show that the matter has

been settled with the complainant whereby they had agreed to resolve the

property dispute and to share the sale proceeds after selling the house in

question. Since the appellant has already served substantial period of

substantive sentence awarded to him by the trial court for committing

offence under Section 315 IPC, for which he was not legally liable to be

prosecuted, no further sentence is required to be awarded to him for

causing 'simple hurt by blunt object' to the complainant and her husband-

Praveen.

7. In the light of the above discussion, the appellant-Dalip is

ordered to be released forthwith, if not required to be detained in any other

case. The appeal stands disposed of in the above terms. Trial Court

record along with the copy of this order be sent back. Copy of the order be

sent to Superintendant Jail for intimation. Crl.M.B.406/2014 also stands

disposed of.

(S.P.GARG) JUDGE FEBRUARY 21, 2014 sa