Satya Parkash Dubey vs State
1997 Latest Caselaw 184 Del

JUDGMENT

Arun Kumar, J.

(1) The appellant has been convicted under section 302 Indian Penal Code for the murder of his wife Promila and sentenced to life imprisonment vide impugned-judgment dated 28th January, 1992 passed by a learned Additional Sessions Judge, Delhi.

(2) Briefly the facts are that the appellant was married to Promila on 10th June, 1987. He was at that time residing in a village in district Gorakhpur. The appellant continued to live in the village for about one and half months after the marriage. Thereafter the couple shifted to Delhi and started residing in the house of the younger brother of the appellant where the father of the appellant was also residing. The house is at first floor of quarter No. 74, Mangol Puri, Delhi. The appellant got a job in which his duty hours were during the night. On the night between 10th and 11th April, 1989, an Fir No. 153/89 was registered at 1.40 A.M. under section 354 Indian Penal Code at police station Mangol Puri in which Promila, wife of the appellant made a complaint against real brother of the appellant for trying to outrage her modesty. On that night, the appellant returned home early from his work, i.e., around 11.00 or 12.00 and found his wife lying on the floor in a disturbed condition. His wife narrated to him the entire incident. He informed the police through telephone. Si Jagroop Singh, Public Witness 21 stated that this telephone message was recorded in the daily diary in the police station and he went to the house of the accused and recorded the statement of Promila. Thereafter the aforesaid Fir was registered. According to Si Jagroop Singh he arrested Om Parkash, the brother of the appellant as well as his father and brought them to the police station. The accused and his wife Promila also came along to the police station. However, all of them were released from the police station. The accused in his statement under section 313 Criminal Procedure Code . stated: "ON10.4.89 in the evening at about 7 p.m. I went to my night duty and from there I returned at about Ii or 12 night due to sickness. When I entered into my room I saw my wife Promila deceased lying on the floor in disturbed condition and she told me that she was beaten and raped by Om Parkash. She also told me that now (she) does not want to live and thereafter she struck her head on the walls and the bed. I tried to make understand her that she should tolerate this incident I would see him. She was adamant to lodge her report and thereafter Si Jagroop Singh came after telephone and my wife stated to him that she was raped and beaten by Om Parkash and she should be medically examined. But Si Jagroop Singh denied for the same and he arrested Om Parkash and my father. Next day on 11.4.891 remained present since 10.30 till my arrest at Hindu Rao Hospital."

(3) From the above statement of the accused it appears that it was not just a case of the brother of the accused trying to outrage the modesty of his wife Promila. In fact she wanted to be medically examined. It appears that the police officer as also the appellant and his brother Om Parkash and father Ram Rattan tried to hush up the matter because it was a family affair and the family honor was at stake.

(4) A Dd entry No. 35/B (Ex.PW-14/A) was recorded at police station Mangol Puri at 1.00 P.M. to the effect that Ashok Kumar duty constable at Hindu kao Hospital informed on telephone that Promila Dubey wife of the appellant after sustaining injuries in a quarrel had been got admitted in the hospital by her husband, i.e., the appellant. In pursuance of the said Dd entry, Si Jagroop Singh went to the Hindu Rao Hospital and Collected the Mlc of Promila. As per endorsement of the doctor she was unfit for statement. He could not meet anyone in the hospital and came to the house of appellant at quarter No. 7/74, Mangol Puri, Delhi. The room where the appellant was residing on the First floor in the said quarter was found locked. He was told by the neighbours that the accused had taken his wife to the hospital. In night Promila died at about 9.30 P.M. Her post mortem was conducted on 13th April, 1989 at 9.00 A.M. The Mlc of Promila is Ex.PW-4/A in which it was recorded that she was brought to the hospital by her husband, i.e., the appellant herein. The date of arrival is given as 11th April, 1989 but the time of the arrival is not given in the Mlc though normally it is always mentioned. Doctor P.k Jain who had recorded the Mlc appeared as Public Witness -4. He stated that Promila was brought to hospital at about 10.30 A.M. At 3.30 P.M. also she was declared not fit for statement. It is noted in the Mlc that it is a case of "alleged history of being beaten as told by husband". She had multiple bruises on her body including upper leg and thighs. She was bleeding from nostrils. The post mortem report is Ex.PW-17/A. The post mortem was conducted by Dr. L.T.Ramani. According to post mortem report, the following injuries were found on the body of the deceased:- "EXTERNALINJURIES .. 1. One reddish colour bruise mark 1-1/2"x1" size on the-bridge of nose. 2. Bruise 3" x 1-1/2" on the right breast fold. 3. Three bruises marks placed parallel to each other on the right shoulder. Size of each bruise was 2" x 1". 4. Multiple bruises scattered all over poster-lateral aspect of right arm, elbow, forearm, wrist and dorsum of hands with defused swelling on the hand. 5. Bruise 3" x I" on the right arm capital region, 6. Bruise on the left side of chest wall over 6" x 4" area. 7. Multiple extensive bruises present all over left arm, forearm and wrist on the outer surface and also on the dorsum left hand. The size of the individual bruises on the arm was 4" x 1-1/2". 8. Bruises 4" x 3" on the outer aspect of left hip. 9. Multiple bruises on the back of left shoulder over 6" x 6" area. 10. Multiple bruise marks (10 of them would be individually counted) scattered all over back of chest and abdomen. 11. Multiple bruises all over left buttock over an area of 10" x 9". 12. Multiple bruises (6) present transversely on the back of right thigh and knee, size varying from 3" to 4" x 1-1/2", 13. Bruises on the lateral surfaces of right thigh upper part. 14. Bruise 7" x 2" on the upper outer part of left thigh. 15. Multiple diffuse bruise marks scattered on the anteroom-lateral aspect of left knee, leg and ankle with abrasions at places. 16. Multiple bruises scattered on the anterior aspect of right leg present transversely. There was extravasation of blood in the subcutaneous and deeper tissues under all the bruises described above. 17. Haematoma on the left temporal region 3" x 2" area. 18. Haematoma on the right occipital region. Internal INJURIES. There was blood clot on the scalp over left temporal partial and right occipital region. Skull bones were intact. There was sub-dural haemorrhage on the left hemisphere of brain. Brain was swollen. Neck tissues were normal. Ribs were intact. Lungs were pale and bloodless. Heart was normal. Stomach contained one oz. thick greenish fluid. Other abdominal organs were normal. Ulterus, bladder and rectum were empty."

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He has given the following opinion about these injuries. "ALL injuries were antemortem and were caused by blunt weapons. Injuries to the skull were sufficient to cause death in the ordinary course of nature. Death was due to coma resulting from head injury. Time since death was about 36 hours. Clothes and sample of blood were preserved and handed over to the police along with the sample seal. My report is Ex.PW-17/A which is in my hand and is signed by me. The injuries found on the body of the deceased are likely to be caused with some danda. Possibility of. some of the injuries (on the nose, right breast) with fist blows cannot be excluded. The injury on the skull which was sufficient to cause death is likely to be caused by blunt weapon like danda."

The clothes of the deceased were sent to Central Forensic Science Laboratory. The Cfsl report is Ex.PX/1. As per the said report, blood was detected on the four clothes of the deceased which were sent for report. These clothes were sari, blouse, petticoat and brassiere. A significant fact mentioned in the Cfsl report is that the blouse of the deceased contained tear marks on its left sleeve. Her petticoat was also found in a torn condition. This report about the clothes read along with some of the injuries found on the body of the deceased, namely, multiple bruises all over left buttock over an area of 10"x9", multiple bruises on the back of right thigh and knee, bruises on the lateral surfaces of right thigh upper part and bruise 7"x2" on the upper part of the left thigh suggest the possibility of rape having been committed on Promila. That is why Promila was keen on being medically examined. Such examination would have shown whether she was subjected to rape or not. Not sending her for medical examination leads to the inference that the incident was being hushed up.. The question for consideration is who caused the injuries to Promila which resulted in her death? The incident took place inside the room where the appellant was residing along with Promila. Si Jagroop Singh was taken to the said room by the accused and the room was opened in the presence of the accused. Si Jagroop Singh has stated as Public Witness -21 that in the room the bedding was spread on the floor. There were broken pieces of bangles lying scattered in the room. He got some photographs of the room taken. He also collected the broken pieces of bangles. The photographs arc Ex.PW-11/1 to 11/4. The first incident for which Promila, the deceased had got an Fir recorded against the brother of the accused had taken place inside this very room. In the said Fir Promila stated that her husband had returned at about 12.30 A.M. that night on account of sickness and she had told to him the entire incident. The husband informed the police. The evidence of Si Jagroop Singh shows that he went to the house of the accused in response to the telephonic report. He arrested the father and the brother of accused and both of them along with the accused and his wife Promila had gone to the police station and all were let off after some time. Thus upto this stage, Promila was not having such serious injuries on her body as could lead to her death. Some of the injuries like bruises etc. might have been caused on the body of Promila during the cruel act of Om Parkash brother of the accused. The fact remains that she ' went all the way to the police station and gave statement to the police. Further it has to be seen that if at that time Promila had any serious injuries she would have been taken to the hospital by the police officer concerned. On the other hand the police officer and the appellant and his father and brother tried to hush up the matter and, therefore, a report under section 354 Indian Penal Code only was registered and they were all sent back home. The attempt was to hush up the whole thing because only close family members were involved. But Promila was not willing for this. She was the victim of a dastardly act. The prosecution examined Dr. Ravi Dubey Public Witness -5 who was a private medical practioner. According to Dr. Dubey, he had been taken from his clinic at about 9.30 or 10.00 A.M. on 11th April, 1989 by the accused to 'his house because his Wife was in a serious condition. Dr. Dubey stated that when he reached the house of the accused on the First floor he found the wife of the accused lying on the floor in a serious condition. Blood was lying on the floor. She was unconscious. The doctor further stated that in view of the serious condition of the wife of the accused he did not examine her and he advised the accused to take her immediately to hospital. Smt. Rawti is Public Witness -3. She is the landlady of the house where the occurrence took place. She corroborated the fact that the accused had brought a doctor to examine his wife on that particular day. She was unconscious. The accused had brought a three-wheeler scooter and took his wife to some place in the same. She also stated that on the previous night police had come and had taken the brother and father of the accused to the police station. From the above facts it is clear that Promila received serious injuries which proved to be fatal. These injuries have to be after 1.40 A.M. on the night between 10th and 11th April, 1989 when she along with her husband returned from the police station and before Dr. RAvi Dubey Public Witness -5 came to attend on Promila next morning at about 9.30 or 10.00 A.M. It is also clear from the record that during this entire period the 'accused was with his wife. There is no suggestion whatsoever forthcoming on the record that any third person visited the couple during this period. The possibility of involvement of any third person is completely ruled out from the fact that had there been any third person the accused would have tried to save his wife from attack by such a person and m the process w6uld have received some injuries. The place of incident is clearly established. The possibility of involvement of any third person is totally ruled out. Even if the third person could be the brother of the accused, the accused would have tried to save his wife from any attack by him unless the accused himself was party to the attack. The facts already narrated show that after the accused returned from his work, he remained with his wife throughout. There is nothing on record to suggest that the accused had any time gone away leaving his wife alone at home after he had returned to his home from work. We have already discussed that in the incident involving the brother of the accused Promila had not suffered such serious injuries which could lead to her death because if any such injury was there, the police officer who recorded the statement of Promila would have surely sent her for medical examination. In fact Si Jagroop Singh Public Witness -21 did not even say that Promila was injured when she made the statement before him. If Promila had any injury, surely the police officer would have noticed the same. Moreover, in the Fir lodged by Promila against the brother of the accused she does not mention physical injuries having been caused to her by the assailant. In the Mlc of Promila it is recorded as alleged history of being beaten as .told by her husband. She was unconscious at that time. That means the accused knew about Promila having been beaten. All these facts point only towards the guilt of appellant and none else. In the normal course of events, it can safely be concluded that the accused must have remained with his wife after he returned from his work. His wife had gone through a traumatic experience. She was disturbed. No normal person would leave his wife alone in such circumstances. In the presence of the accused with his wife throughout, the involvement of any third person in the crime which led to death of Promila is ruled out. We may also consider the possibility of injuries being self-inflicted. For this we have to look up the post mortem report which gives the details of all the injuries on the body of Promila. The injuries are such that they cannot be said to be self-inflicted. From the above facts the involvement of the appellant in the crime is established beyond any shadow of doubt. There is no hypothesis which can possibility suggest his innocence. It appears that Promila must have continued to insist on pursuing the incident involving the brother of the accused further. She probably was not prepared for a hush up of the matter or to leave the matter rest at that. The accused thought otherwise. He thought that the family honour was involved. His brother was being accused of raping his wife. Both were close to him. Therefore, he wanted his wife Promila to swallow the insult. But she was not prepared to do so. This must have led to the accused beating his wife in order to ensure that she keeps quiet about that incident. The next question is that in the facts of this case was the trial court correct in convicting the accused under section 302 IPC? In this connection, it has to be kept in view that the accused is the husband of the deceased. They had been married for about two years when the incident took place. There is nothing on record to suggest any marital discord or disharmony between the two. The incident appears to have taken place because the deceased was not prepared to let the incident involving the brother of the accused be hushed up. She had gone through a traumatic experience and wanted the matter to be taken to its logical conclusion. It was a matter of her individual honour as against the family honour which was probably weighing with the accused because of the involvement of his real brother to whom the accused was also obliged for having been allowed to stay in his house all along. The accused first tried to purusade his wife to close the issue. When she was not willing to do so, he gave beating to her in order to silence her. These facts seen in the light of an additional fact that the injuries on Promila have been described as blunt injuries do not suggest that the accused intended to murder Promila. No weapon of offence has been recovered. The weapon used in commission of a crime often helps in determining the presence or absence of intention to kill. The clue to the weapon used in the present case is provided by the post mortem report which suggests that the weapon used was a blunt weapon. This is a pointer to the absence of intention to kill Promila on the part of the accused. Thus we are of the view that the appellant neither had any intention to kill his wife nor there was any intention on his part to cause such bodily injury as would lead to death. We are also of the view that the act of the accused of causing injuries to his wife Promila does not suggest that the accused knew that it was so imminently dangerous that it must in all probability should have caused death or such bodily injury as was likely to cause death of Promila. Therefore, we are of the view that the case does not fall under section 302 Indian Penal Code It is a case which clearly falls within section 304 Part Ii Indian Penal Code We are informed that the accused has already undergone imprisonment for a period of about seven years. We feel that the imprisonment already undergone by the accused serves the ends of justice in this case and, therefore, on the basis of period of imprisonment already undergone the accused is ordered to be released unless required to be detained in connection with any other case. This appeal is accepted to the extent indicated above. The appeal stands disposed of.