Mahender Pal Sethi vs State
2009 Latest Caselaw 5247 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of decision : 16th December, 2009


+                       CRL. A. No. 458/2005


        MAHENDER PAL SETHI                             ..... Appellant
                     Through:          Mr. Bhupesh Narula &
                                       Mr. Sunny Arora, Advocates

                     versus


        THE STATE                                    ..... Respondent
                          Through:     Ms. Richa Kapoor, APP

        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?                   Yes

     3. Whether the judgment should be reported in the Digest?
                                                         Yes


PRADEEP NANDRAJOG, J. (Oral)

1. Believing the testimony of the two major sons of the

appellant i.e Mohit Sethi and Chetan Sethi, as per whom the

appellant, their father, had murdered their mother, the learned

trial judge has convicted the appellant for the offence of

having murdered his wife.

2. The learned trial Judge has found additional sustenance

to the incriminating evidence against the appellant with

reference to a handle of generator which was got recovered

after the appellant was apprehended; as per the FSL report Ex.

PW-21/G human blood was detected on the handle of the

generator.

3. Ignoring the recovery of the generator handle which

possibly could be the weapon of offence for the reason the

post-mortem report of the deceased shows that she was

repeatedly struck on the scalp with a blunt object, we consider

the testimony of the two sons of the appellant, who were

present in the house when their mother was murdered.

4. As deposed by the two sons of the appellant the crime

took place in the bedroom of their house, in which bedroom

their parents used to sleep. The crime took place at around

5:30 AM on 12.06.2002.

5. Information was received by the Police Control Room as

recorded in the PCR form Ex. PW-23/A at around 7:40 a.m.

6. SI Sita Ram PW-20 and Inspector Om Prakash PW-24

reached House no. H-3/64, Vikas Puri, where the crime was

committed and not the sons of the appellant who were present

in the house. Inspector Om Prakash recorded the statement

Ex. PW-4/A of Mohit Sethi, as per which he was sleeping in the

drawing room of the house and his sleep was disturbed in the

wee hours of the morning at around 5:30 AM when he heard

cries of her mother from the bedroom where his parents were

sleeping. He saw his father running away from the back door

and his mother lying soaked in blood. He informed that his

father used to suspect the fidelity of his mother and on said

account there used to be a matrimonial dispute between the

two. On the basis of the statement of Mohit Sethi the FIR Ex.

PW-1/2A was recorded at the local police station.

7. The body of the wife of the appellant who had died soon

after the assault was seized and sent to the mortuary where

post-mortem was conducted by Dr. B.N. Mishra, PW-17, who

prepared the post-mortem report Ex. PW-17/A, as per which

deceased Kanchan Sethi, aged 45 years had five external

injuries, two of which had resulted in her scalp being fractured

and the brain being damaged. To put it in medical terms, the

upper part of the cerebrum and the left cerebral hemisphere

was damaged. The petrous part of the temporal was

fractured. Death was instantaneous as a result of the

cumulative effect of the injuries suffered by the brain.

8. Dr. B.N. Mishra, PW-17 also gave his opinion Ex. PW-17/B

as per which a generator handle sent to him for opinion was

opined to be the weapon with which the injuries noted by him

on the deceased could be caused.

9. Ignoring the blood stained article which was lifted from

the bedroom where the appellant and his wife used to sleep as

also the site plan for the reason the appellant does not dispute

that his wife died as a result of an assault in the bedroom of

the house, we need to note only the testimony of the two sons

of the appellant. Out before that we note the answers given by

the appellant to some questions when he was examined under

Section 313 Cr. P.C.

10. To question No. 1 that there was evidence that the

appellant, his wife Kanchan Sethi and his sons Mohit Sethi and

Chetan Sethi were residing at House No. H-3/64, Vikas Puri, the

appellant replied in the affirmative.

11. To question No. 5 that there was evidence that on

12.6.2002 i.e. the day when the wife of the appellant was

found dead inside the bedroom, the appellant and his wife

were sleeping in the bedroom and their son Mohit was sleeping

in the drawing room and the other son Chetan was sleeping on

the second floor of the house, the appellant replied in the

affirmative.

12. All other incriminating evidence put to the appellant was

denied.

13. To the last question whether he had anything to say, the

appellant simply state that he was innocent and had been

falsely implicated.

14. Suffice would it be to note that having admittedly being

in the house in the morning on 12.6.2002, the appellant gave

no explanation as to how his wife was assaulted. What is the

effect of the appellant not giving any such explanation would

be dealt with by us after noting the testimony of two sons of

the appellant.

15. We proceed from the last answer given by the appellant

to the Court when he was questioned whether he had

something to tell to the Court, the appellant stated that he was

falsely implicated.

16. Now, who has implicated? The answer is obvious. His

sons. As noted above, the informant to the crime is Mohit

Sethi.

17. It may be noted, at the outset, that while cross-

examining his sons, who appeared as PW-4 and PW-5, no

suggestion has been given to the sons with respect to any

possible motive for both of them to falsely implicate their

father.

18. We have perused the testimony of Mohit Sethi and

Chetan Sethi. Mohit Sethi, PW-4 has stated that his father

used to suspect the character of his mother and used to give

her beatings after consuming liquor; that in the night of

11.6.2002 his parents had a quarrel and went to sleep

thereafter in their bedroom and he slept in the drawing room.

At about 5:30 AM he heard cries of his mother which awoke

him from his slumber. He proceeded to the bedroom and saw

his mother lying on the bed with blood oozing from her head.

His father was near the back door of the bedroom and he saw

him running away towards the park. He called his younger

brother and his maternal uncle. He also contacted his

neighbour, who worked as a doctor in Deen Dayal Hospital.

The neighbour reached and on seeing his mother declared her

dead. Some neighbour informed the police, who came and

recorded his statement Ex. PW-4/A which bore his signature at

point A. Blood sample of his mother and certain blood stain

material was lifted as per the memo Ex. PW-4/C; that he was

taken to Magistrate where his statement was recorded (we

note that Mohit Sethi's statement was got recorded under

Section 164 Cr. P.C., the said statement is Ex. PW-4/G).

19. Chetan Sethi PW-5 deposed that around 5:30 AM on

12.6.2002 Mohit called him and when he came down Mohit

told him that their father had left the house. He saw his

mother lying on the bed and blood oozing from her body. He

deposed that his father was not present in the bedroom at that

time.

20. Mohit Sethi and his brother Chetan Sethi have been

subjected to extensive cross-examination and we do not find

any material contradiction or falsehood in the testimony of the

two sons who were aged about 24 years and 22 years

respectively when they deposed in the Court on 15.1.2004 and

27.3.2004 respectively. It is apparent that two were aged

about 22 years and 20 years respectively when their mother

was killed.

21. What is the evidence which we have before us? Firstly,

that the crime took place inside the bedroom of the house in

which the appellant resided with his wife and children.

Secondly, that the appellant and his wife slept together after a

quarrel in the bedroom in question in the intervening night of

11-12.6.2002. At 5:30 AM the cries of the wife of the appellant

awoke Mohit Sethi who was sleeping in the drawing room and

he saw from his own eyes his mother on the bed with blood

oozing from her head and his father standing near the back

door of the bedroom and on seeing Mohit Sethi his father

running away. There is no evidence that any outsider came

inside the house. Thus, the irresistible conclusion has to be

that somebody who was inside the house murdered the

deceased.

22. Now, only three persons were inside the house; they

were the appellant and his two sons. Whereas Mohit Sethi has

categorically stated that when he heard the cries of his mother

inside the bedroom he saw his father at the back door of the

bedroom, it is not the case of the appellant; we say for the

reason he has given no suggestion to his two sons, that they

had assaulted their mother and thus, the only conclusion

which we can draw indeed any reasonable person would be

compelled to draw would be that appellant has killed the wife.

23. Two additional facts qua the guilt of the appellant may be

noted. Husbands are expected to be in their house at 5:30

AM. The fact that appellant absconded from his house at 5:30

AM is an additional link to the said circumstance and secondly

no explanation given by the appellant as to how his wife was

murdered.

24. Whether the assault is murderous or a simple homicide.

The post-mortem report and the motives give the answer. The

motive proved through the testimony of Mohit Sethi

establishes that appellant suspected the chastity of his wife.

The post-mortem report shows that five external injuries were

inflicted on the skull, a vital part of the body of Kanchan Sethi,

the wife of the appellant. Death is instant.

25. It is obviously a case of murder.

26. We find no merit in the appeal.

27. Dismissed.

28. Since the appellant is in jail, copy of this order be sent to

Superintendent Central Jail, Tihar to be made available to the

appellant.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

DECEMBER 16, 2009 'mr'