Shiv Kumari vs State
2009 Latest Caselaw 4233 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            Crl. A. No. 49/1996

%                                       Date of Decision : 21.10.2009

SHIV KUMARI              ...   ...    ...    ...     ...    ...    ..APPELLANT
                             Through : Mr. N.R. Varghese and
                                       Ms. Tessy Verghese,
                                       Advocates.

                               -VERSUS-

STATE           ...        ...   ...    ...    ...     ...     ... ..RESPONDENT
                             Through : Mr. Sunil Sharma,
                                       Advocate.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

HON‟BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           No

2.        To be referred to Reporter or not?            No

3.        Whether the judgment should be
          reported in the Digest?                       No


SANJAY KISHAN KAUL, J. (ORAL)

1. "Hell hath no fury as a woman scorned" - the suspicions of

the wife about her husband‟s character and the perceived

affection of her husband for another woman has resulted

in a crime in the present case. The appellant has been

convicted for murder under Section 302 of the Indian

Penal Code, 1860 (for short, „IPC‟) of her husband and

sister-in-law and under Section 307 of the IPC for

attempt to commit murder of her son and daughter - all

as a consequence of her belief that her husband was

having an affair with his cousin and his consequent

behaviour with the appellant.

2. The appellant was married to one Shiv Kumar alias

Sukumaran (deceased) and from the wedlock were born

a boy and a girl, namely, Sanjeev and Seema. The

family was residing at D - 80, Karampura, New Delhi

where the sister of the deceased, namely, Chandrika was

also residing. The case of the prosecution is that the

appellant suspected an affair of her husband with his

cousin Shobhna, who was living as a tenant in House No.

C - 125, New Moti Nagar, New Delhi. The appellant was

naturally offended and there were quarrels between

husband and wife as a consequence thereof. On the

fateful night preceding 10.10.1990, Sukumaran is

alleged to have returned home late, at which the

appellant protested resulting in altercation between the

appellant and her husband. Sukumaran is alleged to

have remarked in anger that he would set on fire all the

members of his family. The anger seemed to have

subsided, but kept on burning in the heart of the

appellant. Sukumaran was sleeping in the inner room

while the two children and Chandrika slept on a double-

bed in the outer room where the appellant was sleeping

on the floor. At about 4.30 a.m. on 10.10.1990, the

appellant is alleged to have smashed the head of

Chandrika with a „moosli‟ (cylindrical bar of iron used for

crushing spices). This moosli was also used to cause

injuries on the head of her son and daughter whereafter

she assaulted her husband and finally hit herself on the

head.

3. The episode is stated to have been witnessed by a next-

door neighbour, namely, Smt. Anita when she heard the

cries of the daughter of the appellant and rushed to the

flat, but found it bolted from inside. A second neighbour,

Ram Kishore Shukla is stated to have joined in the effort

to open the door and it is the husband of Smt. Anita,

namely, Ram Lakhan who informed the PCR. DD Entry

No. 67/B was made at about 4.50 a.m. by SI Prakash

Chand, who along with SI Sukhdev Singh went to D - 80,

Karampura, New Delhi to investigate the crime. On the

site visit, SI Prakash Chand found that blood was spread

all over with Chandrika, the son and the daughter lying

in injured condition in the inner room. The appellant was

lying in a semi-conscious state and her husband was

lying in a pool of blood in the inner room. In the

meantime, information had been sent to CMO, ESI

Hospital and the ambulance carried Sukumaran to the

said hospital where he was declared brought-dead. The

two children along with Chandrika and the appellant

were taken in the PCR van to DDU Hospital where

Chandrika was declared brought-dead, while the other

injured were referred to RML Hospital. Fortunately, both

the children survived. At P.S. Moti Nagar, information

was recorded vide DD No. 67/B that a woman had

murdered her two children and the SHO along with an SI

rushed to the spot. The statement of Smt. Anita was

recorded and sent to the police station for registration of

the FIR. The trial court on filing of the charge-sheet

framed charges against the appellant and the appellant

pleaded not guilty and claimed trial.

4. The prosecution examined 44 witnesses. Some of them

are formal in nature. The two eye-witnesses, Smt. Anita

and Ram Kishore Shukla were material witnesses, but

unfortunately Smt. Anita expired during trial and could

not be examined. Her husband Ram Lakhan was,

however, examined as PW - 30, who testified that his

wife had told him that the appellant had murdered her

husband and children and he informed the PCR van. The

most material witness for the case of the prosecution is

Ram Kishore Shukla, PW - 25. He deposed that while he

was sleeping in the cot in the gallery outside the room,

he was awakened by the sound of knocking of the door

and found Smt. Anita, who informed him of the cries she

had heard from the house of the appellant. On this,

PW - 25 woke up and watched through a window from

where he could see some light in the room. He saw the

appellant striking on the bed with something in her

hand. The endeavour of PW - 25 and Smt. Anita to

knock and persuade the appellant to open the door was

not successful. Some other persons are stated to have

come to the site and the door had to be kicked open

whereupon they saw the gory sight. The appellant was

found striking her own head with the moosli. The moosli

was snatched by PW - 25.

5. We may note at this stage that the son and the

daughter, i.e., PW - 34 and PW - 35 respectively, who

were injured in the occurrence and survived, deposed

that they did not know how they had received the

injuries and, thus, were declared hostile. The motive of

extra-marital affair was sought to be established by

Shoba Rani, PW - 18, the landlady of the cousin Shobhna

of the husband of the appellant and their neighbour,

Thimpy, PW - 24, but they also turned hostile though

PW - 18 did admit that the deceased Sukumaran used to

come in the evening to see Shobhna and he used to stay

up to 9.30 p.m. or 10.00 p.m. The real brother of the

deceased Sukumaran, namely, Surindaram, PW - 9

deposed that Sukumaran and his family were living

happily and that Chandrika had been brought to Delhi by

the appellant herself. The post-mortem on the bodies of

Sukumaran and Chandrika was done by Dr. L.K. Barua,

PW - 28, who examined the weapon of offence being the

moosli and expressed the opinion that fatal injuries could

be caused by that weapon.

6. In the statement under Section 313 of the Code of

Criminal Procedure (for short, „Cr.P.C.‟), the appellant

sought to set up a different story. She denied having

caused any injury to her family members and claimed

that the injuries may have been caused by some

unknown burglars as her husband was lending money

against pledge of gold ornaments. She claimed that the

money and ornaments were missing and that what she

was wearing herself as also what was worn by Chandrika

and her daughter were not found on the persons. She

explained the incident by claiming that she got up at

4.00 a.m. on 10.10.1990 to go to the toilet outside since

there was no attached toilet, but did not put any latch.

On her return after 10 or 12 minutes, she found three

persons standing there and before she could raise an

alarm, she was hit on the head with a heavy substance.

She also produced one witness in her support being one

of her colleagues, who has testified to normal

relationship between the husband and the wife.

7. A perusal of the impugned judgment shows that the

conviction is based on the circumstances of the case

along with the testimony of the eye-witness, PW - 25,

who was examined. We have perused the impugned

judgment and the trial court record and have heard the

submissions of learned counsel for the parties.

8. The plea of learned counsel for the appellant is

predicated on the motive not having been established. It

is pleaded that the prosecution has rested its case on a

presumption of an illicit relationship between the

deceased husband Sukumaran with his cousin Shobhna

and the eye-witness account of PW - 25. Learned

counsel seeks to take advantage of the children having

turned hostile as also the landlady Sobha Rani of the

cousin Shobhna. It is further pleaded that there was no

reason why the sister-in-law Chandrika or the children

should have been attacked by the appellant if she had a

grievance against her husband about any illicit

relationship. The brother of the deceased, PW - 9, has

also deposed to the parties having living a happy life.

Learned counsel also sought to throw doubt on the case

of the prosecution by alleging that the moosli was a foot

long and weighing two kgs. and could not have been

used by the appellant. In case there was an altercation,

there was no reason to suggest as to why the appellant

would wait four to five hours before attacking her

husband. Learned counsel, in addition, seeks to read

into the testimony of PW - 25 an averment that Anita

had told him that the appellant opened the door when

they were knocking while, on the other hand, he has

claimed that the door had to be forced open along with

other persons (who were not examined). Anita had

passed away and, thus, her version was not available.

An additional plea raised is that PW - 25 was enimical

towards the family of the appellant and that the theory

of burglary as proposed by the appellant was a plausible

one and, thus, the benefit of doubt should, in any case,

go to the appellant.

9. We, however, find none of the aforesaid arguments

sustainable. The impugned judgment has dealt with all

the issues in a crisp and lucid manner. The question is

not whether the deceased husband of the appellant was

having an extra-marital relation with her cousin

Shobhna, but whether the appellant suspected such an

extra-marital relationship. No doubt, the evidence

towards this motive is weak as the children had become

hostile when they appeared in the Court.

Simultaneously, the theory sought to be propounded by

learned counsel for the appellant of any past enimical

relationship between her deceased husband and PW - 25

is belied by the testimony of the daughter herself, who

has denied such acrimony. PW - 25 has withstood cross-

examination and has, in fact, stated that he had only

once visited the house of the appellant. PW - 18, the

landlady while not sticking by her original story as

recorded in the statement under Section 161 of the

Cr.P.C. has conceded in the cross-examination that

Sukumaran did used to visit Shobhna and stayed on till

as late 9.30 p.m. / 10.00 p.m. This statement was not

challenged on behalf of the appellant. The trial court

has, thus, rightly noticed that such late arrival may have

created a suspicion in the mind of the appellant. This,

however, cannot be the basis of the conviction of the

appellant and the most material aspect is the testimony

of PW - 25, who had no axe to grind with the appellant.

10. The trial court in para 18 of the impugned judgment has

discussed the aspect of the testimony of PW - 25, his

ability to observe what was transpiring in the house of

the appellant by reference to the site-plan (Exhibit PW -

44/A) and the scaled site-plan (Exhibit PW - 22/A) and

came to the conclusion that the window in the flat of the

appellant opening towards the common gallery would

give clear view to PW - 25, who was sleeping in the

common gallery. The night bulb in the room has been

noted in the site-plan and the appellant striking her own

head was witnessed by PW - 25 when the door was

broken open and the complete gory sight was observed.

The photographs of the site (Exhibit PW - 23/12 & 13)

show half uprooted latch of the main entrance, which are

in line with the testimony of PW - 25 that the door was

forced open. The plea of learned counsel for the

appellant that PW - 25 had deposed that the appellant

had opened the door on the asking of Anita is not a

correct reading of the testimony. PW - 25 has deposed

that Anita was asking the appellant to open the door.

The phrase used is, "Seema Ki Mumi, Darwaza Kholo".

Thus, the reference was to the mother of Seema

(daughter) asking the appellant to open the door and not

that she opened the door. This testimony is also against

the very premise of the statement made by the

appellant under Section 313 of the Cr.P.C. that she had

left that door open. If the door was open when she

entered and saw three unknown persons standing, there

was no occasion for the door to be closed from inside.

The injury caused to the appellant as per the MLC

(Exhibit PW - 39/C) is contrary to her claim that she was

hit from behind. No sign of burglary was found at the

spot.

11. Sometimes, a word can wound more than an act.

Sukumaran coming back late and then threatening to

erase his own family in a fit of anger seems to have

caused an irreparable wound in the heart of the

appellant, who took the extreme step of not only

attacking her husband, but also her sister-in-law and her

two children. Faced with what she had done, she tried to

take her own life in the same way. The alternate story

set up by the appellant is totally unbelievable on account

of the circumstances discussed above and there is no

reason to doubt the eye-witness account of an

independent witness PW - 25. There was no one else in

the house other than the appellant and the two

deceased relatives and the injured children. There is,

thus, only one plausible theory as set up by the

prosecution and proved by the eye-witness account of

PW - 25, despite the endeavour of her family members

to resile from the earlier statement to help her. The

admitted evidence available as to what was said soon

after the incident is available from the testimony of Dr.

Y.K.S. Pundir, PW - 27, who was the CMO of ESI Hospital

and where the appellant worked as a nurse. He has

deposed that at 5.00 a.m., two persons came and

informed him that an employee has caused hurt to her

husband and others. The DD entry recorded on

intimation is to the same effect of the appellant having

committed murder of her family.

12. We, thus, find no reason to interfere with the impugned

judgment of the trial court on merits. We may, however,

note that the appellant seems to have completely over-

reacted to a suspicion in her mind. She has suffered

incarceration for more than eight and a half years and is

now a retired lady having some medical problems. Her

sentence was suspended on 19.11.1999 whereafter she

remained on bail till her failure to appear in appeal which

resulted in NBWs being issued and she was finally

brought before this Court on 03.09.2009 and sent to

judicial custody as the surety was not willing to be

responsible for her presence in future.

13. The consequence of our order would, thus, be that the

appellant would have to serve the remaining sentence

after being out of custody for a decade, but then the

Legislature gives us no option once the case falls within

the parameters of Section 302 of the IPC, over which we

have no doubt, insofar as causing death of the two

deceased persons is concerned apart from her conviction

under Section 307 of the IPC for causing injuries to her

children.

14. The appeal is accordingly dismissed and the appellant to

serve the remaining sentence.

SANJAY KISHAN KAUL, J.

October 21, 2009                                     AJIT BHARIHOKE, J.
madan