S.K. Harison S/O Shri Harison And ... vs State Of Delhi
2006 Latest Caselaw 1700 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is aggrieved by a judgment and order dated 4th August, 1998 passed by the learned Additional Sessions Judge, Delhi in Sessions Case No.111/97 convicting him of an offence under Section 302 of the Indian Penal Code. On 7th August, 1998 the Appellant was heard on the question of sentence and on that day he was ordered to be sentenced to imprisonment for life and to pay a fine of Rs.1,000/- in default of which he has to undergo further rigorous imprisonment for one year.

2. The case of the prosecution was that the Appellant and his wife Kaushalya were living together in House No.31, Village Munirka, Delhi. The Appellant was working in the Indian Navy and was required to go on duty every alternate day. On those days, he would leave his wife and infant son with his parents in Vasant Vihar.

3. On 28th June, 1990, the Appellant left his wife and infant with his parents and at about 9.30 pm he picked them up and proceeded to the matrimonial home where they reached at about 10.30 pm.

4. On the way, it appears that the Appellant used abusive language against his wife reflecting upon her chastity. He told her that when they reach home he would teach her a lesson.

5. After the Appellant and his wife arrived at their matrimonial home, the Appellant switched on the television and tape recorder at a high volume and closed the door. When his wife was feeding the infant, who was about 4 or 5 months old at that time, the Appellant snatched the infant from her, pressed him in his lap with great force and thereafter caught the infant by his legs and tossed him in the air. The infant landed on their folding bed and the Appellant kept banging the infant against the bed until he died. All this while, Kaushalya was crying and requesting the Appellant not to manhandle the infant but to no effect. After the infant was dead, Kaushalya tried to go outside but the Appellant took out a knife and told her to remain in the room and threatened her that in case she disclosed anything, he would kill her also. The Appellant accused his wife of having a love affair with somebody and kept quarreling with her till about 3.30 or 4.00 am the next morning. Thereafter, Kaushalya told the Appellant to call his family members but he suggested that they should instead go to his parent's house. Early on the morning of 29th June, 1990, they went to the house of the Appellant's parents and came back a little later. At about 6.00 am, Kaushalya asked the Appellant to allow her to ring up her parents and when she was permitted to do so, she came out of the house and rang up the police from her neighbour's house.

6. The police arrived thereafter and conducted investigations into the cause of death of the infant.

7. During the investigation, it transpired that the couple were married on 23rd December, 1988 and after a month or so, the Appellant had beaten Kaushalya and doubted her chastity. She made a complaint with the police but a settlement was arrived at and the Appellant assured that in future he would not beat her. However, the Appellant did not adhere to the settlement and almost two days thereafter he again started beating her.

8. It also transpired that a few days earlier on 25th June, 1990, the Appellant had severely beaten Kaushalya as a result of which she fractured her arm at two places. This was later confirmed from the medical records produced before the Trial Judge by PW-17 Naik H.P. Yadav.

9. On these broad facts, and on the conclusion of investigations, the police filed a challan against the Appellant under Section 173 of the Criminal Procedure Code (Cr.P.C). Thereafter, the following charge was framed against the Appellant: -

That you on 28-6-1990 at about 10.30 PM at house No.31 Munirka, Delhi did commit murder by intentionally or knowingly causing the death of your son Terence Harrison aged about five months and thereby committed an offence punishable Under Section 302-IPC and within the cognizance of this Court.

The Appellant pleaded not guilty and the case was set down for trial.

10. The prosecution examined as many as 20 witnesses while the Appellant did not produce any witness in his defense. He made a statement under Section 313 of the Cr.P.C.

11. Kaushalya entered the witness box as PW-1 and narrated the above sequence of events. She stated that at the time of the incident she had a male child of about four months of age and that a few days prior to the incident, the accused had broken her hand at two places and she was treated at the Army hospital. At that time she had not lodged any complaint in this regard. She narrated the events of 28th June, 1990 including the manner in which the Appellant had killed the infant. She also stated that in the early morning of 29th June, 1990 she and her husband had gone to her in-laws house to inform them about the death of the infant, but they were sent back. She later on called the police and gave her statement to them.

12. Kaushalya's brother PW-2 Avtar Singh confirmed that she had been beaten up by the Appellant after about a month of the marriage and that she had complained to the police. He stated that a settlement was arrived at and that a few days before the incident, the Appellant had broken Kaushalya's hand.

13. The prosecution produced some witnesses who were neighbours of the Appellant but their testimony is not of much consequence except PW-15 Shyam Sunder who stated that on the night of the incident, the Appellant was playing a tape recorder in his house at a high volume.

14. After considering the entire evidence on record, the learned Trial Judge arrived at the following facts:

(a) The Appellant was married to Kaushalya and after about a month or so, he started beating her because he doubted her chastity. Kaushalya had complained to the police about this and a settlement was arrived at between the husband and wife but even thereafter the Appellant would continue to beat his wife.

(b) The couple had a male child who was about four months old on the date of the incident, that is, 28th June, 1990.

(c) On 25th June, 1990, the Appellant had broken the arm of his wife and she was treated in the Army hospital.

(d) On the night of 28th June, 1990, the Appellant brought his wife and infant son from his parents house to the matrimonial home at about 10.30 pm and while his wife was feeding the infant, he snatched the baby from her, pressed him in his lap, tossed him in the air, repeatedly struck his head on the folding bed causing the death of the infant.

15. To this, we may add the finding that the Appellant had put on the tape recorder at a loud volume perhaps with the result that the noise of the tape recorder drowned any sound that came from the house of the Appellant, including the crying of Kaushalya.

16. The learned amices Curiae made two principal submissions before us. It was firstly contended by him that between the statement given by Kaushalya to the police and her examination-in-chief in Court, there was some improvement in her story. The improvement was to the effect that while she was in the witness box, she stated having told the police that the Appellant had told her jis din se bachcha hua hai isne naak main dam kar rakha hai. The learned amices Curiae submitted that she had not made any such statement before the police.

17. We are of the view that this 'improvement' is of no consequence at all. The broad facts of what transpired on 28th June, 1990 have not been doubted, and it is only what transpired later that has been questioned by the learned amices Curiae. Whether Kaushalya told the police about the statement made by the Appellant as noted above, or not, is of absolutely no consequence since it does not, in any manner, have any impact on the events of 28th June, 1990. We, therefore, reject the submission of the learned amices Curiae. We may note that in Jayaram Shiva Tagore v. State of Maharashtra 1991 Supp. (2) SCC 677 the Supreme Court has observed:

It is true that this Court has held that where the prosecution rests on the sole testimony of an eye-witness, the same should be wholly reliable. However, that does not mean that each and every type of infirmity or minor discrepancies would render the evidence of such witness unreliable.

18. It was then contended that at the time when the Appellant had applied for bail in this Court, Kaushalya had given an affidavit to the effect that the allegations made in the FIR were false and also that when the Appellant tried to snatch the infant from her, the baby fell from her hands on the folding bed and thereafter on the floor, implying thereby that the death was accidental.

19. According to Kaushalaya, she was forcibly taken to the High Court by the Appellant's brother, namely, Jagdish for the purposes of having her affidavit attested. The Appellant could have easily brought Jagdish to the witness box to disprove Kaushalya's allegation but he did not do so. Moreover, it appears that the affidavit attested by Kaushalya was about six or seven months after the incident. It is possible that with the passage of time she may have been pressurized into changing her statement, but in any event, she stuck to her original narration of events when she entered the witness box much later on 2nd December, 1991.

20. The story set up in the affidavit that the infant accidentally fell down was not only not proved on the basis of the evidence on record, but the doctor who conducted the examination appeared in the witness box as PW-12 Dr. G.K. Chobey and he stated that the kind of injuries sustained by the infant could not have been sustained due to the infant falling from Kaushalya's lap.

21. It does appear from all these facts that Kaushalya was coerced into giving an affidavit which was factually not correct and the best person to disprove this theory of coercion was the Appellant's own brother who did not even enter the witness box to deny the allegations made against him.

22. Even otherwise, on an overall appreciation of the evidence of the case, we find that there is nothing to suggest that the events as narrated by Kaushalya are incorrect. She had no reason to falsely accuse her husband of causing the death of their child while, on the other hand, the Appellant had a history of violent behavior and had also harboured some doubts about his wife's chastity. Looking at the overall factual scenario, we do not find any reason to agree with any of the contentions urged by the learned amices Curiae. We find no merit in the appeal and the same is, accordingly, dismissed.

23. The Appellant be informed through the Superintendent, Central Jail, Tihar.