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Judgment
Shiv Narayan Dhingra, J.—This appeal has been preferred against the judgment dated 13th November, 1998 whereby the appellant was
convicted under Sections 307 and 452 of the Indian Penal Code as well as against order on sentence dated 17th November, 1998 whereby he
was sentenced to undergo RI for two years and to pay a fine of Rs. 500/-under Section 307 of the IPC and the same sentence u/s 452 IPC. Both
sentences were to run concurrently.
Brief facts are that appellant was an ex-servant at the shop/office of the husband of the complainant. On 11th August, 1993, the appellant went
to the house of the complainant at about 1 pm. The complainant was teaching her children and her son Deepu was taking meals. The appellant told
the complainant that he had come from Firozabad and was hungry, he be given food to eat. The complainant told him that no food was ready at
that time. On this, the appellant picked up her son Deepu, who was taking food, along with his food plate and took him upstairs. The complainant
got doubtful about the intentions of the appellant and she proceeded towards stairs to go upstairs. She found another boy standing near the stairs.
She inquired from that boy as to who was he. By this time, the appellant came near her and caught her from her hair and threatened to kill her.
Complainant started crying. On hearing her cries, the other boy ran upstairs and jumped from the roof and ran away. On hearing cries of
complainant, her neighbours came. The appellant left her and rushed to the back door and ran away. She went upstairs to look for her son Deepu
but did not find him in the room. On not finding her son, she became panicky and told the neighbours that Deepu was missing. The neighbours also
searched for Deepu with her. On search, Deepu was found in the box of ""Deewan"" (bed), in unconscious condition. There was a scratch on his
neck and some blood drops had come from his penis. Deepu was immediately removed to nearby clinic by the neighbours. The police also
reached at the spot and the child was taken to Hindu Rao Hospital from the clinic.
The child was medically examined at Hindu Rao Hospital where the doctor opined the injuries as simple. As per MLC, he was having bruises
on the neck and some blood had come from the urinary track.
Since the appellant was ex-servant of Mr. Prem Chand, husband of the complainant, his address was known to the family of the complainant.
The family provided his address of Firozabad, U.P. to the police and police went to Firozabad in his search after few days. On reaching
Firozabad, police learnt that the appellant was sent to jail by police of South Firozabad due to his involvement in another case u/s 25 of Arms Act
on 17/8/1993 in FIR No. 582/1993 of Police Station South Firozabad. The Investigating Officer then made an application Ex.PW6/A for his
custody in the instant case. Vide order dated 2nd September, 1993, CJM, South Firozabad granted custody of appellant to the Investigating
Officer and the appellant was arrested in this case and further investigation was done. The prosecution case is that the appellant had a grudge
against Mr. Prem Chand, husband of complainant, since he was removed by him from the job. The appellant had also to receive Rs. 500/- from
Mr. Prem Chand as balance and he had, Therefore, gone to the house of the complainant during noon time in order to take revenge.
The appellant was tried for the offence u/s 452 and 307 of IPC to which he pleaded not guilty. The complainant, mother of the injured child,
testified in the Court on the same lines as was her complaint. She was cross examined at length. Her credibility could not be shaken during cross
examination. A suggestion was given to her that the appellant was falsely implicated because the appellant was previously working with her
husband and after leaving his service, he started working with a rival property dealer and so the family nourished a grudge and falsely implicated
him in the instant case. PW-2 Smt. Subadhra, a neighbourer, also supported the prosecution case. She had seen one person jumping from the roof
of the house of complainant and running away. She then went and knocked at the door of complainant, another neighbour also came there and
they all searched for Deepu. Deepu was found in the box of a ""Deewan"". There were scratches on the neck and the private part of Deepu seemed
to have been pressed as blood had oozed out. PW-3 is another neighbour who also supported the prosecution case and stated that she saw the
appellant running from back door and came to house of complainant and found that Deepu untraceable. They all searched for Deepu and he was
found in the box of ""Deewan"". Their suspicion that Deepu was being in box arose because the bed sheet over it was disturbed. Deepu was taken
to neighbouring clinic by her and he was put on oxygen by the doctor. Police came there and took Deepu to hospital. She knew the appellant since
the appellant had worked as servant with husband of complainant at his shop. The MLC of Deepu giving nature of injuries as simple was proved
as Ex.PW4/A by the record clerk of the hospital since the doctor who had examined Deepu had left the hospital and the record clerk identified the
signatures of the doctor.
The appellant in his statement u/s 313 Cr.P.C. took the stand that since he had left services of the complainant''s husband prior to 1992 and
started working with another property dealer viz Pappu, Therefore he had been falsely implicated to take revenge. He had not visited the house of
the complainant after leaving the service of the complainant''s husband. No defense witness was examined by appellant.
Learned Trial Court, after appreciating the entire evidence came to conclusion that it was the appellant who had trespassed into the house and
made attempt on the life of child Deepu.
It is argued by learned Counsel for appellant that the prosecution had not examined the most important witness i.e. child Deepu in this case. His
non-examination amounted to withholding of the material witness and, Therefore, the appellant was liable to be acquitted. The other argument is
that the MLC of Deepu had not been legally proved and mere exhibiting of MLC by record clerk does not amount to proof.
When the incident took place Deepu was six years old, as is evident from Ex.PW4/B, his MLC. A child of 6 years suffered trauma when an
attempt was made on his life and his private parts were pressed. An attempt seemed to have been made on his life by trying to strangulate him and
then stuffing him in the box of ""Deewan."" At the time when evidence was recorded, the child was hardly 7 years old. In my opinion, where a child
is a victim of violence at the hands of an accused and the violence meted out to the child can be proved by other witnesses, non examination of
victim child shall not amount to an infirmity in prosecution case. A child who has suffered trauma at the hand of accused, may dread the very sight
of accused and exposing him to the accused may amount to another trauma for the child. I consider that this is not a case of deliberately
withholding the material evidence, and no infirmity is attached to the prosecution case merely because of non examination of the victim child.
The plea that the MLC has not been proved must fail. A document can be proved by the author of document or any one else who can identify
his signature. MLCs are recorded in the hospitals in the normal course of duties by the doctors who are there at the ''causalities''. The record of the
injuries is prepared and documented only for the reason that it is not possible for any doctor to remember as to what were the injuries on the
person of an injured after few days. A doctor has to examine, in causality several patients per day and in all medico legal cases, a record of injuries
is prepared for use in the Courts. The doctor who prepares the record of injuries is normally called to prove the MLC in the Court during evidence
which may be after a year or more of his examining the injured. A doctor cannot be expected to depose orally as to what were the injuries on the
person of a patient. A doctor Therefore speaks from the MLC. MLC is an authentic record of injuries which is prepared i n regular course of
business by the doctor present and can be safely relied upon by the Courts, even when the doctor is not examined in the Court and the record is
proved by any other doctor or record keeper. Any person who alleges that the MLC i.e. the record of injuries produced in the Court was not
authentic and there has been tampering with the record, has to show to the Court how tampering has been done. It cannot be expected from the
hospitals to keep track of the doctors after the doctors leave the hospital. Neither it is necessary for a doctor to keep the hospital informed about
his latest whereabouts. A doctor today working in AIIMS or SJ Hospital may tomorrow be working in Bangalore and next month may be away to
any other country. Merely because doctor is not personally examined, the MLC cannot be disbelieved. Proving of MLCs by a colleague doctor
who identifies the signatures of the doctor on MLC or by any administrative staff of the hospital or by any record keeper who identifies the
signatures of the doctor on MLC, is a valid and good proof. MLC cannot be doubted unless tampering with MLC is proved by the person alleging
tampering. When a medical man is examined to prove the MLC of a colleague, all questions regarding medical jurisprudence can be asked to him
and when a clerk is examined and the accused wants to ask some questions about medical aspects, he can ask the court to summon some doctor
from hospital who can answer the questions on the medical aspects of injuries, their nature, their impact on the body. It is not a legal requirement
that the doctor who examined the plaintiff alone can answer such questions.
The accused had taken defense that since he started working for a rival property dealer, he was falsely implicated. During arguments, the
attention of learned Counsel for appellant was drawn to the fact that appellant had not disclosed the address where he had been living in Delhi,
while working with other property dealer. Even during arguments, the appellant failed to give any address in Delhi where he lived and simply stated
that he had been staying at the shop of other property dealer itself. He did not disclose even the address of the shop. The appellant had not
examined the other property dealer in his defense where he had allegedly been working. During arguments it was admitted by appellant that he had
been living at Firozabad, U.P. not in Delhi. The complainant'' s statement made to the police itself shows that she told the police that the appellant
had come from Firozabad. If he had been living in Delhi and working with some rival property dealer, he would not have told complainant that he
had come from Firozabad. He had been involved in other criminal case also. Looking into all facts and circumstances, I find that there is no force in
the appeal.
Learned Counsel for the appellant argued that the Court should show some leniency in sentence awarded to him and he should be let off with
the imprisonment already undergone by appellant. He has been in Jail for six months. I consider that the Trial Court had already taken a very
lenient view in awarding sentence of RI of two years. The young children have become easy prey for the criminals and increasingly they are being
targeted and subjected to all sorts of crimes like ransom kidnapping, rape, murder etc. No leniency is warranted to the criminals making children as
their targets.
In view of my foregoing discussion, I find no force in the appeal. The appeal is hereby dismissed.