Amit Kumar vs State
2010 Latest Caselaw 1832 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision : 8th April,2010

+                      CRL.A. 442/2008

        AMIT KUMAR                             ..... Appellant
                         Through:    Ms.Anu Narula, Advocate

                               versus


        STATE OF NCT OF DELHI           ..... Respondent
                      Through: Mr.M.N.Dudeja, Advocate
         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?
                                                    Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Unfortunately, none appears for the appellant at the

hearing of the appeal today. None appeared even in the

forenoon when application seeking bail was taken up for hearing.

The application was dismissed by a separate order passed in the

forenoon noting that the appeal can be argued today itself.

2. Ms.Anu Narula Advocate who is present in Court has

agreed to render assistance as Amicus Curiae and we accordingly

appoint Ms.Anu Narula Advocate as the Amicus Curiae to

represent the appellant and fix her fee in sum of Rs.7,500/-, to be

paid by the Delhi High Court Legal Service Committee.

3. With the help of learned counsel Ms.Anu Narula we

have gone through the evidence on record. We have heard

learned counsel for the State.

4. The appellant has been convicted for the offence of

having murdered Chetan, his first cousin.

5. As deposed to by Shree Pal PW-2, the father of the

appellant, the appellant along with his wife and children used to

reside on the first floor of House No.247-248/15, Kalyanpuri,

Delhi, on the ground floor whereof Shree Pal used to reside with

the mother of the appellant and the brother of the appellant as

also Chetan, the first cousin of the appellant who was orphaned

when he was an infant. The appellant was a short tempered

person and used to quarrel with his wife Hemwati. On the night

of 9.10.2005, the appellant picked up a quarrel with his wife. To

cool the matter, Shree Pal told the wife of the appellant to sleep

on the ground floor along with her children, at which the

appellant became furious and commanded his wife not to listen

to her father-in-law i.e. Shree Pal PW-2, but the wife of the

appellant obeyed what was desired of her by her father-in-law

and mother-in-law i.e. she along with her children slept on the

ground floor. Next day morning at 5:00 AM the appellant

knocked at the ground floor. The mother of the appellant opened

the door. The appellant had an altercation with her. The

appellant went up and after sometime returned and picked up a

quarrel and all of a sudden thrust a scissor in the stomach of

Chetan, who probably tried to pacify the anger of the appellant.

Unfortunately for Chetan, the single stab wound damaged his

intestines. Before timely medical aid could be rendered to

Chetan, he died.

6. There is corroboration to the testimony of Shree Pal

through the testimony of Jitender PW-4 who is the brother of the

appellant.

7. We see no reason as to why the father Shree Pal and

Jitender, the brother of the appellant, should be falsely deposing

against him. We have gone through the cross-examination of the

two witnesses and do not find anything worthy of being noted

wherefrom the credit of the two witnesses can be impaired.

8. But, in view of the circumstances brought out by

Shree Pal and Jitender it cannot be said that the act of the

appellant constitutes the offence of murder.

9. Suffice would it be to state that it is not the testimony

of the two witnesses that the appellant had any ill will against

Chetan or had any motive to kill Chetan. The testimony of Shree

Pal and Jitender brings out the short tempered nature of the

appellant and that he struck a blow with a scissor on the stomach

of Chetan probably out of anger and with an intention to injure

Chetan.

10. We note that neither PW-2 nor PW-4 have actually

seen as to what actually transpired between Chetan and the

appellant when the appellant inflicted a solitary blow on Chetan.

But, the events of the previous night and the events at 5:00 AM

on the day of the incident bring out that the appellant was

annoyed at his parents permitting his wife to sleep on the ground

floor and the wife of the appellant not obeying the command of

the appellant. It is not a case where the appellant brought a

knife with him. It is not a case where the appellant came pre-

armed. In all probability he picked up a scissor lying in the room

and thrust the same in the stomach of his cousin.

11. But, knowledge can certainly be attributed to the

appellant that if he struck the scissor and pierced the stomach of

his cousin by such act he was likely to cause death.

12. Thus the offence committed by the appellant would

be culpable homicide not amounting to murder and since Section

299 (c) of the Penal Code would be attracted, we hold that the

appellant has committed an offence punishable under Section

304 Part II IPC.

13. We hope and expect that the period of incarceration

which the appellant has suffered, being 4 years, 6 months and 27

days would have chastened the appellant.

14. We have on record a very pathetic and tear rendering

letter written by the wife of the appellant to the appellant which

has been filed by the appellant at the stage of seeking interim

bail.

15. The plight evidenced by Hemwati, the wife of the

appellant, shows that the persons who are actually penalized is

not the appellant, but his wife and three children.

16. In the confines of Tihar jail, the appellant is fed a

breakfast, a lunch and a dinner. He gets tea and biscuits twice a

day. His basics are well-looked after by the jail authorities.

17. But what is the plight of the wife and children of the

appellant?

18. We briefly note the same.

19. As per the letter of Hemwati addressed to the

appellant in jail, after invoking the blessings of God she has

informed the appellant that life has become unbearable for her

and she is just not able to bear the pain of suffering of her

children. As per her, after the unfortunate incident, her in-laws

compelled her to leave her matrimonial house along with her

three children. She shifted to the house of her mother where her

brother and her sister-in-law got tired of feeding four mouths and

after sometime told her to fend for herself and her children.

Hemwati writes, that to help her brother she took up a job of

cleaning utensils and moping the floor in a house, but the money

was insufficient. Her brother compelled her to leave his house

and one night she was thrown on the street along with her

children. Hemwati writes that she is unable to bear the pains of

hunger of her children and their suffering each day. She has

desired that the appellant should return to care for the family

before it is too late. She has wondered as to for what sin she and

her children are suffering. She has informed the appellant that

her life is ebbing and her courage to fight hardship has

evaporated and she has lost the battle. Invoking her being a

married Hindu lady and requesting the appellant to uphold the

pride of her Manglasutra, she concludes the letter by stating that

she has had enough of misery in life and unless her husband

takes up responsibility of managing the affairs of the family she

may be compelled to take the extreme step.

20. We have noted the plight of the wife and the children

of the appellant not only to bring home the point as to how

sentencing policies sometimes let go the real culprit and the axe

falls on the innocent. Indeed, it is not the appellant who is

suffering a sentence. His wife and children, who are innocent,

are the real sufferers.

21. Be that as it may, we conclude our decision by

disposing of the appeal holding that the appeal is partially

allowed. The conviction of the appellant for the offence of

murder is modified. The appellant is convicted for the offence of

culpable homicide not amounting to murder under Section 304

Part II IPC, for which offence we sentence the appellant to

undergo imprisonment for period already undergone.

22. We are informed that as per policy framed by the

Department of Social Welfare, Government of NCT Delhi, from

out of the Prisoners' Welfare Fund, money is paid to the family of

a prisoner where it is found that the family is in extreme distress.

23. The letter written by Hemwati in the month of January

2010 brings out the plight of Hemwati. Thus, we direct that if the

policy framed by the Ministry of Social Welfare, Government of

NCT Delhi permits some financial assistance to be rendered to

Hemwati, needful would be done. While taking a decision in

respect of extending aid to Hemwati, it would be kept in view

that she has three children.

24. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent Central Jail Tihar with

a direction that if the appellant is not required in custody in any

other case he would be set free forthwith.

25. We further direct that a copy of this decision would be

sent to the Secretary Law, Government of NCT of Delhi.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

APRIL 08, 2010 mm