Delhi High Court
State vs Rupinder Kumar on 8 April, 2011
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: April 06, 2011
Judgment Delivered On: April 08, 2011
+ CRL.A.53/1999
STATE ..... Appellant
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar, Advocate
versus
RUPINDER KUMAR ..... Respondent
Through: Mr.Ajay Verma, Advocate with
Mr.Anirudh Wadhwa, Mr.Gaurav
Bhattacharya, Ms.Swati Gupta and
Ms.Mari Reba, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and order dated 26.08.1997, respondent Rupinder Kumar has been acquitted of the charge of having committed an offence punishable under Section 302 IPC.
2. He was charged of having murdered his wife Manju Bala in their matrimonial house at around 11:30 PM on 24.5.1996.
Crl.A.No.53/1999 Page 1 of 163. The case of the prosecution unfolds on 24.05.1996, when at about 11:30 PM, information was received by the Police Control Room that in House No.RZ-66, Gali No.11 West Sagarpuri (the admitted matrimonial house of the respondent and his wife) a quarrel was taking place, which information was conveyed to the local police station and recorded vide DD No.37A.
4. HC Mahavir Singh (PW-4) and Ct.Mathew who were in a PCR vehicle also picked up the wireless message flashed and being nearest to the house in question proceeded to the house. The respondent was admittedly found in the house holding a screw driver in his hand. Broken pieces of bangles were found scattered inside the house. Blood of the deceased was noted on the clothes of the respondent and as per the prosecution people outside the house were saying that the respondent had killed his wife. SI Ganga Ram PW-12 to whom DD 37A was assigned for investigation reached the house accompanied by Ct.Vajinder PW-5 and he recorded Ct.Mathew‟s statement Ex.PW-12/B as per which Ct.Mathew stated that when he and HC Mahavir Singh received information over the wireless they drove their PCR van to the house and saw a scared crowd outside the house expressing fear to enter inside as people were saying that the respondent was armed with a screw driver and had murdered his wife. The two police officers entered the house and disarmed the respondent and by the time SI Ganga Ram and Ct.Vajinder reached the house and therefore the screw driver as also the respondent was handed over to the two police officers.
Crl.A.No.53/1999 Page 2 of 165. The dead body of Manju Bala was seized and sent to the mortuary for post-mortem and as per post-mortem report Ex.PW-6/A following injuries were detected on her body:-
"1. One linear abrasion on back at lumber region about 8cm X 0.5cm.
2. Bruises on left inguinal region 4cm X 2cm.
3. Bruises on left maxillary region 4cm X 2cm.
4. Multiple bruises on neck about 10 to 15 in number varying from 4mm to 1mm.
5. Bruises on the right side of the ear.
6. One puncture mark on posterior triangle of neck 8cm below right ear alone trapezius border 3mm X 1mm in size. Blood was present over it."
6. The doctor conducting the post-mortem i.e. Dr.Komal Singh PW-6 opined the cause of death to be hemorrhagic shock caused due to right corotive artery cut by punctured penetrating injury No.6 on the neck. Internal examination reveal subscalpular clots on the left frontal, temporal and occipital region. He was later on sent the screw driver Ex.P-1 which was recovered from the hand of the petitioner and upon the post-mortem report, at the point mark „A‟, gave an opinion that the fatal injury on the person of Manju Bala could possibly have been caused by the said screw driver, sketch whereof he drew on the post-mortem report and which shows that the screw driver has a handle of length 8.2 cm and the remainder having length of 15 cm.
Crl.A.No.53/1999 Page 3 of 167. Before noting the evidence led at the trial and the reason given by the learned Trial Judge to acquit the respondent, it would be useful to note the statement of the respondent under Section 313 Cr.P.C. as to the cause of the death of his wife. To the last question as to what did he have to say, he replied as under:-
"On 24.05.1996 I became late in my office in connection of some official work. The name of my office is Nastle, D.L.F Centre, Connaught Place, New Delhi as Security Guard. On that day I left my office at about 10:45PM. I went at the bus stop of bus route no. 704. I boarded in the said bus from Jantar Mantar. At that time one Sh. Rakesh Kapur was also sitting in that bus. Said Rakesh Kapur is known to me as he is the resident of the same locality near Madanpuri, West Sagarpur. The name of my colony is Geetanjali Park, West Sagarpur, New Delhi. We have talks with each other in the bus and we left the bus at bus stand of Sagarpur, New Delhi. From there I went to my house at Madanpuri, West Sagarpur, New Delhi. It was about 11:45 PM when we left the bus route No. 704 at bus stop Sagarpur. At 11:45 PM I myself and above named Rakesh kapur proceeded towards our respective houses from the bus stop Sagarpur, New Delhi. At about 12 Midnight I reached at my house I saw some persons collected in front of my house. When I entered my house I saw my wife Manju Bala in an injured condition lying in the kitchen in my house. At that time she was crying for help being injured. I took out the screw driver from the neck of my wife with a view to help her. Meanwhile two police personals came into my house and caught hold me."
8. Relevant would it be to note that the respondent admitted being in his house at the time when the police came and at that point of time he had the screw driver in his hand. He also admitted a crowd having collected outside his house.
Crl.A.No.53/1999 Page 4 of 16But claimed that when he reached the house after parting company with his friend Rakesh he saw his wife crying for help and in an injured condition. He took out the screw driver from the neck of his wife with a view to help her and claims that just about then the police came and arrested him.
9. At the trial, Ashu Ahluwalia PW-3, the son of the respondent turned hostile and claimed that he was sleeping in the house with his brother Hemant from around 9:30 PM a point of time when his father was not in the house and that his neighbours broke his and his brother‟s slumber. He denied having witnessed his father assault his mother or that the relationship between the two were bad. Harinder Kumar PW-2, the brother of the respondent who resides in a separate portion of the same house also turned hostile and denied having told the police that he had seen the respondent assault his wife.
10. The two stated eye witnesses did not support the case of the prosecution.
11. Evidence of a motive surfaced through the testimony of Smt.Vedwati PW-8, the mother of Manju Bala who stated that for 10 years Manju had returned to her parental house due to being ill-treated by the respondent who she imputed having illicit relations with another lady.
12. Rakesh Kapur, the person named by the respondent as his friend in his statement under Section 313 Cr.P.C. deposed as DW-1, and stated that he and the respondent had left together from the bus stop at Connaught Place and had Crl.A.No.53/1999 Page 5 of 16 reached together the bus stop at Madanpuri and parted company with each other at around 11:45 midnight when they went to their respective houses.
13. The learned Trial Judge has disbelieved the defence witness on the ground that being a friend of the respondent he would be an interested witness, a reasoning with which we do not agree, but concur with the alternative reasoning of the learned Trial Judge that the fact that Rakesh Kapur could not even give the particulars of the house of the respondent belied the claim of both that they were good friends. Now, Rakesh Kapur claims to reside in the same colony i.e. claims to be a resident of House No.RZ-22, West Sagarpuri. The respondent resides in House No.RZ-66, West Sagarpuri and thus we find it strange that in spite of claiming himself to be a good friend of the respondent, Rakesh Kapur could not even give the house number and particulars of the respondent.
14. In view of the fact that the two eye witnesses turned hostile and in view of the fact that the witness to sustain the plea of alibi, a plea which we find was fairly tenuous in view of the defence which the respondent finally took i.e. of being in the house with the screw driver which caused the death of his wife in his hand i.e. a point of time coinciding fairly closely to the point of time when his wife died, the learned Trial Judge, in para 35 of the impugned order held that, Quote: „The prosecution was bound to establish that accused alone was present in the house and could have killed his wife. Such evidence have not been led. The circumstance has not been cogently confirmed.‟ Crl.A.No.53/1999 Page 6 of 16
15. Learned counsel for the State has rightly pounced upon the said reasoning of the learned Trial Judge, stated in imperfect language, but meaningfully read means that the learned Trial Judge has held that when respondent‟s wife died he was in the house but since the prosecution has not established that he alone was in the house, the prosecution could not succeed.
16. In the very next paragraph, i.e. paragraph 36 of the impugned judgment, the Trial Judge has thrown further light on the reasoning wherein he has observed as under:-
"36. The third circumstance is not much in dispute. It is the case of the prosecution as well as of the defence that when HC Mahavir Singh and Constable P.M.Mathew of PCR came to the house of accused then unconscious Manju was lying in injured condition and the accused was holding blood stained screw driver in his right hand. The evidence create suspicion against the accused. The circumstance is quite strong but still it has not travelled beyond the stage of suspicion. It has been held by the D.B. of our Hon‟ble High Court in case reported in 1966 (2) Delhi Lawyers 26 that suspicion cannot be clothed with the garments of proof. Mere suspicion or suspicion circumstances cannot relieve the prosecution of its primary duty of proving the case against the accused persons beyond reasonable doubts. If the process of evidence on which the prosecution chooses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole super structure built on such insecure foundation collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of prosecution‟s case. In another case the Hon‟ble Supreme Court has expressed similar views. In case reported in AIR 1977 SC 530 Dateer Singh vs. Crl.A.No.53/1999 Page 7 of 16 State of Punjab, the Hon‟ble Apex Court has observed that it is often difficult for courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicion circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused persons beyond reasonable doubts."
17. We agree with learned counsel for the State that having held that it stands established that the respondent was in the house when his wife received the fatal injuries, in the absence of any explanation from the side of the respondent to explain the injuries on his wife and his plea that he was not in the house and saw his wife injured when he entered the house being not believable, the learned Trial Judge was bound to consider the testimony of respondent‟s son as per whom only his parents and the 2 brothers were the residents of the house and that when their mother was assaulted, the 2 brothers were sleeping. Had the learned Trial Judge considered said fact i.e. the testimony of Ashu Ahluwalia PW-3, the son of the respondent, it would have dawned on the learned Trial Judge that there were only 4 residents of the house. The respondent, his wife Manju Bala and their two sons; who were minor. This would demolish the reasoning of the learned Trial Judge that there was no evidence to the effect that there was no evidence to rule out the presence of somebody else. That apart, if the prosecution established that the respondent was in the house when his wife was injured, he had to satisfactorily explain as to how his wife received injuries. In the absence of any satisfactory explanation, Section 106 of the Evidence Act had to be applied and a presumption permissible to be raised Crl.A.No.53/1999 Page 8 of 16 under Section 114 of the Evidence Act ought to have been raised. It is apparent that the learned Trial Judge has not posed the questions which arose to be answered.
18. Further, the learned Trial Judge did not even bother to consider the post-mortem report Ex.PW-6/A and the injuries noted therein which were suffered by Manju Bala. We have noted the injuries suffered by Manju Bala in para 5 above. There are 6 injuries suffered by the unfortunate lady. Dead bodies tell the tale of their death. What does Manju Bala‟s dead body have to tell? Injury No.4 i.e. multiple bruises on the neck being 10 to 15 tell us that Manju Bala was caught by her neck. She had struggled to free herself but the vice like strangle-hold did not let her go free and in the struggle, which had lasted for some time, she was continuously caught hold of by the neck. Injury No.1 is an abrasion on the back at lumber region which shows a hefty blow with a blunt object and possibly the fist. The second and the third injuries, being bruises on the left inguinal and maxillary region tell us that when Manju Bala was held on by her neck, 2 more blows other than the 1 at the back was struck with a fist on her upper jaw and groin region. The fifth injury i.e. bruises on right side of ear tell us that she was struck blows on the right side of the ear. There then remains the sixth injury i.e. the puncture mark on the posterior triangle of neck which shows the screw driver in question being pierced into her neck. Internal injuries, being clots detected in the subscalpular, frontal and temporal areas also tell a story in tune with injury No.2, 3 and 5 that extravasations of the arteries was the result when the face and the ear region of Manju Bala was pounded. The 6 external Crl.A.No.53/1999 Page 9 of 16 injuries and the internal injuries i.e. the clots due to extravasations when the arteries ruptured tell a story which the learned Trial Judge unfortunately could not hear.
19. The story told is that whosoever assaulted Manju Bala did so out of anger and not for any other reason. Now, it is either the respondent who killed Manju Bala or it was some other outsider. If it was an outsider, the only motive could be to seek revenge and kill Manju Bala or enter the house to commit robbery and upon finding resistance from Manju Bala to kill her. In said scenario, the outsider would have straight away lodged the fatal assault to silence Manju Bala and not pound her with a fist thereby making her cry in pain thereby attracting rescue. Further, if the motive of the assailant was to seek revenge and kill Manju Bala he would have entered the house armed with a knife and not an ordinary screw driver. If the motive was to commit robbery, the robber would have entered the house with a knife as the time was such that a robber would have reasonable expected the house inmates to be awake and he certainly would have planned to silent them into submissions by threatening them with a deadly/dangerous weapon. The ordinary household screw driver being the weapon of offence also tells us a part of the story which the learned Trial Judge could not hear. It tells us that the screw driver was lying in the house and not brought by an outsider for if it was an outsider, on the two possible motives which we have discussed hereinabove, the weapon with him would not be an ordinary screw driver.
Crl.A.No.53/1999 Page 10 of 1620. The injuries on Manju Bala are obviously the result of somebody taking out his anger on Manju Bala; the ordinary household screw driver used as the weapon of offence adds on to the theory that it was an insider‟s job. We have to further factor in the testimony of HC Mahavir Singh PW-4 which finds corroboration from the FIR Ex.PW-9/A and suffice would it be to state that unlike statements under Section 161 Cr.P.C., statements/complaints under Section 154 Cr.P.C. can be used for corroboration, as per which testimony HC Mahavir and Ct.Mathew proceeded to the house of the respondent and the deceased upon hearing information that a quarrel was going on in the house. It is true that the person who gave the information has not been examined, but the fact that information of a quarrel was conveyed to the police is an important piece of evidence proved through the testimony of HC Mahavir. This corroborates with the injuries on the deceased which suggests that she was beaten by somebody with that somebody clinching his hand in a fist. Broken bangles found scattered in the house as depicted in the site plan Ex.PW-7/A prepared by Insp.Gurudev Singh PW-7 corroborate a quarrel. Blood has been lifted from inside a room near the kitchen and the internal courtyard of the house. The scene of the crime, with evidence of a quarrel inside the house and the assault on the deceased are all conclusively indicative of an insider‟s job. The fear of the crowd outside as deposed to by HC Mahavir also indicates that the assailant was inside the house. If the assailant had escaped and as claimed by the respondent he came to the house later, the crowd would have joined in the act of rescue and not stood fearfully Crl.A.No.53/1999 Page 11 of 16 outside. The conduct of the respondent is also important. If he claims that he saw his wife crying and injured with a screw driver stuck in her neck when he reached the house, his instant reaction would be to pull out the screw driver, which he claims he did, but then not sit around. He would have lifted the unfortunate lady in his arms to comfort her and not only summons a rescue for her by yelling out to the neighbours to help him but by lifting her and carrying her outside the house, to be transported to a hospital where medical aid could be given to her. We note that as per the post-mortem report Manju Bala weighed 50 kg and was a lady of thin built. The conduct of the respondent is in conflict with that of an innocent and a loving husband and is in consonance with the conduct of a husband having a motive to assault his wife.
21. Conscious of the law that a verdict of acquittal reinforces the presumption of innocence in favour of an accused, but law being that where a Trial Judge has ignored vital and relevant evidence or has ignored vital and relevant circumstances, it becomes the duty of the Appellate Court to have a re-look at the evidence. We have already highlighted hereinabove the incorrect reasoning of the learned Trial Judge in paragraphs 35 and 36 of the impugned decision, we have highlighted hereinabove a non-discussion by the learned Trial Judge with respect to the injuries on the deceased; we have highlighted hereinabove the non-discussion by the learned Trial Judge with respect to an ordinary household screw driver being the weapon of offence; we have highlighted hereinabove the non-discussion by the learned Trial Judge to the theory of an outsider being the assassin with reference to the injuries on Crl.A.No.53/1999 Page 12 of 16 the deceased and the weapon of offence; we have highlighted hereinabove the non-consideration by the learned Trial Judge to the evidence of Ashu i.e. the son of the deceased and the respondent as to the two sons and their parents being the only residents of the house; we have discussed hereinabove the non-consideration by the learned Trial Judge qua the conduct of the respondent with reference to his claim of entering the house and seeing his wife lying injured and crying for help.
22. These are our reasons for having a re-look at the evidence and for the re-look given by us and as discussed hereinabove, we see no escape from the conclusion that the evidence on record unerringly points the finger of acquisition upon the respondent and rules out his innocence.
23. The question would then be as to what offence has been committed by the respondent.
24. He has beaten his wife and the assault on her clearly indicates an intention to injure the unfortunate lady and not to kill her. As opined in the decisions reported as AIR 1990 SC 1459 Vijayee Singh Vs. State of U.P. and AIR 2001 SC 2902 Kashi Ram & Ors. Vs. State of M.P., it is the duty of a Court to look at all the probabilities and circumstances emerging from the evidence at a criminal trial and thereafter find out that elusive nugget of truth which is the object of discovery at every criminal trial.
25. The totality of the evidence probablizes that being angry with his wife, the respondent launched a physical assault on her. At the first instance he caught his wife by the Crl.A.No.53/1999 Page 13 of 16 scuff of her neck and held on to the neck while pounding her with fist blows, some of which were directed towards the face and the occipital region. Finding an object, which unfortunately happened to be an ordinary household screw driver, when in a fit of rage, little realizing what would be the consequences of his further act, respondent picked up the screw driver and jabbed the same in the neck of his wife and as the blade of the screw driver pierced the soft neck tissue it cut an artery and the excessive resultant bleeding coupled with the extravasations of the arteries in the occipital, frontal and temporal region took their toll.
26. Now, the subscalpular clots in the occipital, frontal and temporal area of the deceased are evidence of the ferocity of the blows with which the respondent struck his wife and any ordinary person can safely be fastened with the knowledge of knowing that if he strikes fist blows on the occipital and temporal region, extravasations of the artery may take place and death being the likely result of the act. Further, a person who jabs a screw driver in the neck of a person can safely be fastened with the knowledge of knowing that he may cut through the trachea i.e. the wind pipe, which may prove fatal or cut any of the arteries or veins carrying blood to and from the brain, which may prove fatal.
27. Thus, for the acts done by the respondent, while it may not be permissible to draw an inference that he intended to kill his wife or intended to cause any particular injury to his wife, it can safely be said that he can be attributed knowledge that his acts are likely to result in the death of his wife and for Crl.A.No.53/1999 Page 14 of 16 which acts, in light of the knowledge which we can impute to the respondent one can safely say that the respondent has committed an offence punishable under Part II of Section 304 IPC.
28. The date of the crime is 24.5.1996. The respondent was arrested at the spot. He was acquitted on 26.8.1997. It is thus apparent that the respondent has remained in custody for one year and three months.
29. It is no doubt true that we are deciding the State appeal as a result of leave to appeal be granted in Crl.M.No.5758/1998 after over 12 years of leave to appeal being sought, but the nature of the brutal assault launched by the respondent on his wife has also to be kept in mind and thus blending the two i.e. 12 years taken for the appeal to be decided and the act of brutality committed by the respondent, we think that the appropriate sentence to be imposed should be 5 years RI to be suffered by the respondent.
30. Disposing of the appeal we set aside the impugned judgment and order dated 26.8.1997 acquitting the respondent. We convict the respondent for the offence of culpable homicide of his wife but not amounting to murder and punish him for the offence punishable under Section 304 Part II IPC and direct him to undergo rigorous imprisonment for 5 years and needless to state he would be entitled to the benefit of Section 428 Cr.P.C. The respondent is directed to surrender and suffer the remaining sentence.
Crl.A.No.53/1999 Page 15 of 1631. Copy of this decision be sent to the Superintendent Central Jail Tihar for his record and entry in the Jail Register. TCR may be returned.
(PRADEEP NANDRAJOG) JUDGE (SURESH KAIT) JUDGE APRIL 08, 2011 mm Crl.A.No.53/1999 Page 16 of 16