Ashok Kumar Kohli vs State
2010 Latest Caselaw 2119 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision : 22nd April, 2010

+                         CRL.APPEAL No.614/2008

       ASHOK KUMAR KOHLI               ..... Appellant
               Through: Ms.Purnima Sethi, Advocate

                                 versus

       STATE                                    ..... Respondent
                      Through:   Ms.Richa Kapoor, A.P.P.

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 the Reporter or not?

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

PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated

22.11.2007 the appellant has been convicted for the offence of

having murdered Pushpa at around 8:00 PM on 26.12.2005 at

House No.B-155, East Vinod Nagar, Delhi; for which offence

the appellant has been sentenced to undergo imprisonment

for life.

2. It may be noted at the outset that when the

appellant was examined under Section 313 Cr.P.C. he admitted

that there used to be tension between him and Pushpa over

the children and that the appellant used to beat her due to

which Pushpa left with her children. But, all other

incriminating evidence including the fact that along with her

children Pushpa started residing at B-155, East Vinod Nagar,

Delhi was denied by the appellant.

3. Appellant‟s conviction has been sustained on the

basis of the testimony of Nitin PW-1, the eldest child of Pushpa

who was aged 12 years when he deposed in Court on

7.12.2006. The date of the crime being 26.12.2005, it is

apparent that Nitin was aged 11 years when his mother died.

4. Therefore, we straightway proceed to note the

testimony of Nitin and other evidence to support the claim of

Nitin of being in his house and what he saw.

5. At the forefront is the undisputed and

uncontroverted testimony of HC Ravi Kumar PW-15 who

deposed having penned DD No.75-B, Ex.PW-15/B, recording

the fact that on 26.12.2005 at 20:25 hours information was

received from the PCR that a quarrel was going on at House

No.B-134 East Vinod Nagar. As deposed to by HC Ravi Kumar

he handed over copy of the DD entry to SI Jaswant Singh for

inquiry who left the police station in the company of

Const.Yogender. The second is the uncontroverted testimony

of HC Daya Chand PW-17 who proved having recorded DD

No.36-A, Ex.PW-17/A, at 20:30 hours on 26.12.2005 that police

control room had informed that a lady has been murdered in

House No.155-B Vinod Nagar. Both afore-noted witnesses

have not been cross-examined. The relevance of their

testimony is that around 8:25 PM information was flashed to

the police of a lady (Pushpa) being murdered at House No.155-

B East Vinod Nagar. It proves the likely time when Pushpa was

assaulted being somewhere prior to 8:25 PM.

6. The next is the testimony of Dr.Kaushal Tyagi PW-

13 the author of the MLC Ex.PW-13/A which records that

Meena W/o Ajay R/o R-57 East Vinod Nagar, Delhi had brought

Pushpa to Lal Bahadur Shastri Hospital at 8:40 PM on

26.12.2005 and that Pushpa was dead when examined by

Dr.Kaushal Tyagi. In his deposition Dr.Kaushal Tyagi has

deposed that he was on duty at the hospital on 26.12.2005

when Meena W/o Ajay brought Pushpa to the hospital at 8:40

PM and upon examining Pushpa he found her dead.

Dr.Kaushal Tyagi has not been cross-examined.

7. The testimony of Dr.Kaushal Tyagi and the MLC

Ex.PW-13/A proves the fact that at 8:40 PM Meena was the one

who took Pushpa to the hospital. Thus, a few minutes prior

thereto Meena being with Pushpa stands established.

8. It may be noted that the person whose name is

recorded as Meena is actually Neena (PW-2) W/o Ajay. She

resides at R-57 East Vinod Nagar. Learned counsel for the

appellant concedes that either due to a spelling mistake or on

account of phonetic similarity in the two names, Dr.Kaushal

Tyagi incorrectly recorded name of „Neena‟ as „Meena‟.

9. In the backdrop aforesaid we note the testimony of

Nitin PW-1, who stated that he was a student of Class-IV and

was residing at B-155 East Vinod Nagar on 26.12.2005 with his

mother Pushpa and his three younger brothers, his father, the

appellant, was residing separately as he used to beat his

mother who did not want to live with the appellant. At 8:00 PM

on 26.12.2005 the appellant came to their house. His mother

asked him why he came. Appellant gave no reply but put a

jacket on the neck of his mother and pressed the neck and

threatened that if she yelled he would stab her with a knife.

His mother started crying and the appellant inflicted knife

injury on her neck and ran away. Meena (PW-2) and her

husband Ajay (PW-3) took his mother to the hospital. Police

came to his house and recorded his statement Ex.PW-1/A.

Later on he was taken to the hospital where he identified his

mother.

10. On being cross-examined he stated that actually

Pappu was his father and had left his mother and that the

accused whom he and his brother used to call „Papa‟ was not

their father. He denied that Pappu was the one who had killed

his mother. On being questioned as to how Neena and Ajay

came to his house he said that immediately after the

occurrence he went to their house and that he remained in

their house and hence did not see them remove his mother to

the hospital. He clarified that the landlady of Ajay later on told

him said fact. He said that when he returned to his house he

saw blood outside the room and that the police came after

about 10/15 minutes of his mother being removed to the

hospital. He stated that the police took his signatures on two

blank sheets and that Neena‟s statement was recorded in his

presence.

11. Neena PW-2 deposed that on 26.12.2005 at about

8:00 PM Nitin PW-1 came to their house and informed that his

father had given a knife blow on his mother and hence she and

her husband Ajay went to Pushpa‟s house and saw Pushpa in

an injured condition in the street outside her house in a pool of

blood. She and her husband removed Pushpa to LBS Hospital

and when she asked Pushpa as to how she sustained the

injury, Pushpa could only utter 'Ashok Ashok' and could speak

no further. At the hospital the doctor declared Pushpa dead.

That Pushpa along with her children shifted to East Vinod

Nagar two months prior to the incident. On a leading question

being put with the permission of the Court, she admitted that

she had told the police that Pushpa told her that her husband

Ashok had stabbed her. She admitted having told the police

that the appellant and Pushpa used to frequently quarrel. On

being cross-examined she said that she and her husband

entered the house of Pushpa and saw blood and only when

they came out they saw Pushpa on the street. She stated that

her and her husband‟s statement was recorded at the police

station. She stated that her and her husband‟s clothes got

smeared with blood of Pushpa when they removed her in the

TSR to the hospital. She stated that Nitin stayed behind in her

house when she and her husband went to Pushpa‟s house

when Nitin told them that the appellant had stabbed Pushpa.

She admitted that four children were born to Pushpa from her

earlier husband Pappu and that on account of Pappu illtreating

Pushpa she left Pappu and thereafter, though not married to

the appellant who was already married and had a child from

his wife, started residing with him as husband and wife and

that the appellant loved Pushpa. She admitted that the

appellant used to pay money to Pushpa.

12. Ajay PW-3, husband of Neena deposed in sync with

his wife save and except stated that when and his wife went to

the house of Pushpa, Nitin followed them.

13. Suffice would it be to record that while cross-

examining Neena, her testimony that Nitin came to her house

and informed her and her husband that the appellant had

stabbed his mother has not even been challenged; not even a

suggestion has been put to her that said claim of her was

false. As regards Ajay, a bald suggestion has been given to

Ajay at the tail end of the cross-examination that he has

deposed falsely; a suggestion which he denied.

14. The photographs Ex.PW-7/A1 to Ex.PW-7/A6 show

blood inside a room, just outside a room on the street and on

the street.

15. Since Pushpa was removed to the hospital before

the police could arrive, it is obvious that Pushpa‟s movements

have to be gathered from the photographs. It is apparent that

Pushpa had stumbled out on to the street, but could not shriek

for the obvious reason she had as many as 17 stab injuries as

recorded on her post-mortem report Ex.PW-20/A, proved at the

trial by Dr.Vinay Kumar Singh PW-20, who conducted her post-

mortem. The 17 injuries are as under:-

"1. Incised wound, of 18 x 4 cm, present over upper side of leg muscle deep, 135 cm above toe and 1 cm lateral to sympsismenti along lower left jaw, margins regular, both ends acute, external jugular vessels, internal caroted vessels incised.

2. Bruised abrasion, 2.5 x 1 cm present over right side of neck 6 cm below right ear.

3. Abrasion, 1 x .5 cm over middle of neck, 6 cm below chin.

4. Abrasion, 3.5 x 1 cm, 1 cm lateral to outer canthas of right eye.

5. Abrasion, 1 x .5 cm, over the lateral 1/3rd of right eye brow.

6. Abrasion, 1 x .5 cm, middle of the forehead.

7. Abrasion, .5 x .5 cm, over back of the right elbow.

8. Abrasion, .5 x .2 cm, 2 cm below right knee joint.

9. Abrasion, .5 x .5 cm over left lateral mallilus.

10. Abrasion, 1 x .5 cm lower left knee joint.

11. Laceration 2 x .2 cm vertically placed above knee joint.

12. Incised wound 1 x .5 cm outer side at left little finger, bone deep margin sharp and regular, angle acute.

13. Incised wound 1.5 x .1 cm subcutaneous tissue deep over base of little middle finger vertically placed.

14. Incised wound of 1 x .1 cm subcutaneous tissue deep over hypothener aspect of left palm oblique placed margin sharp & regular.

15. Incised wound of 2 x .5 cm, subcutaneous tissue deep present over hypothener aspect of left palm oblique placed margin sharp & regular.

16. Abrasion 3 x 1 cm present over inner aspect of the left forearm 4.5 cm above wrist joint.

17. Abrasion 1 x .5 cm over back of the left elbow 2 cm below and over inner aspect."

16. Injury No.1 proved fatal as per the doctor. Indeed,

the neck of Pushpa was cut deep enough evidenced by the

fact that not only the external jugular vein but even the

internal caroted vessels were cut. The other injuries show the

fight put up by Pushpa to save herself. Thus perhaps except

whispering, Pushpa could speak no louder.

17. We now note the submissions urged at the hearing

of the appeal today. We shall note each submission and deal

with it at seriatim.

18. It is firstly urged that Nitin could not be an eye-

witness as he has not explained the injuries on Pushpa

inasmuch as he deposed that his father i.e. the appellant

inflicted a knife blow on the neck of his mother. It is also

urged that the post-mortem report of Pushpa does not show

any ligature on her neck and hence claim of Nitin that at the

first instance his father tried to throttle his mother with a

jacket is false.

19. Now, attempt to throttle and throttle are two

different things. As per Nitin using a jacket an attempt was

made to throttle his mother and this account for no ligature

mark being detected on the neck of Pushpa. Nitin has not

used the expression „single stab‟. He has simply said that

when the attempt to throttle his mother failed, the appellant

stabbed his mother on the neck. Being 11 years of age when

he saw what happened it is but obvious that the unexpected

events overtook Nitin and this explains his testimony without

graphic details. From this trivial aberration it would be

preposterous to conclude that Nitin was not an eye-witness.

As noted above, claim of Neena that Nitin came running to her

house and told her that appellant had stabbed his mother in

the neck has not been refuted by challenging the testimony of

Neena and thus we find corroboration to the claim of Nitin of

being in his house not only through the testimony of Neena

but even Ajay.

20. Besides, the incident took place somewhere around

8:00 PM. The day was 26.12.2005. Last week of December is

peak winter time in Delhi. The sun sets by around 5:40 PM.

There is total darkness by 6:00 PM. It is time for children to be

in their house. Nitin‟s presence in his house is natural.

21. It is then urged that Nitin does not claim to have

seen his mother running out. It is urged that admittedly

Pushpa managed to go outside the room where she was

stabbed. It is urged that even said fact shows that Nitin was

not present in the house.

22. The argument overlooks the deposition of Nitin that

on seeing his mother being stabbed in the neck he

immediately ran to the house of Neena aunty. This explains

Nitin not seeing and hence not deposing that his mother

stumbled out.

23. It is urged that Nitin is a liar inasmuch as he claims

that Neena‟s statement was recorded in his presence but

Neena claims that her statement was recorded in the police

station.

24. Trivial slip ups by persons do not justify they being

labelled as liars; to do so would mean that just about all of us

would be liars. Deposing of events in the distant past after a

year or so of the incident entails loss of memory and hence

hiccups here or there. To be branded as a non-truthful person,

the embellishments have to assume the proportion of either

improvements or contradictions which render the statements

unworthy of acceptance.

25. Now, Nitin seeing the investigating officer talk to

Neena aunty at the spot and his thinking after one year and

hence his saying that Neena aunty‟s statement was recorded

by the police at the spot is explainable as a perception of an

honest truthful boy.

26. It is then urged that Nitin claims to have stayed

back in the house of Neena aunty when Neena aunty and Ajay

uncle, on receipt of information from him of the appellant

stabbing his mother, went to his house and Neena deposing to

the contrary shows that the two witnesses have contradicted

each other.

27. We see no contradiction for the reason what Nitin

claims to apparently say is that he did not immediately follow

Neena and Ajay to his house. That he deposed that the police

reached his house after 10-15 minutes and recorded his

statement shows that he did go back to his house. That apart,

we fail to understand as to what is the effect of this

contradiction pointed out. Except for pointing out a

contradiction, it has not been further argued as to in what

manner the same affects the credibility of the witnesses.

28. It is then urged that neither Neena‟s nor Ajay‟s

clothes, which they claimed got stained with the blood of the

deceased, were seized by the police and this proves that the

two never rescued Neena by removing her to the hospital.

29. Now, if the investigating officer is lax, it does not

mean that truth must lose. As noted above in para 6 above,

Dr.Kaushal Tyagi PW-13, has not been cross-examined and

thus his testimony that Neena W/o Ajay brought Pushpa to LBS

Hospital at 8:40 PM has to be accepted. We have percipient

evidence of Dr.Kaushal Tyagi to corroborate claim of Neena

that she and her husband removed Pushpa to the hospital.

30. It is then urged that Neena and Ajay claim to have

entered the house and saw blood inside and then came

outside and saw Pushpa on the street. It is urged that if

Pushpa was already on the street, it makes no sense for the

two to have gone inside the house. The natural conduct would

be to immediately rush Pushpa to the hospital. It is urged that

this shows that Neena and Ajay have not deposed full facts in

a truthful manner.

31. We do not know as to under what circumstances

Neena and Ajay failed to notice Pushpa on the street when

they entered her house. No such question was put to them.

Had one been put to them, some answer would have been

given and then we could have tested their credibility. It is

settled law that no argument can be built on a conduct or an

assumption unless the person concerned is questioned on the

same.

32. One reason as to why Neena and Ajay did not

notice Pushpa on the street is probably, as stated by Ajay, that

it was dark outside coupled with the fact, as stated by Ajay,

that when they came out of the house they saw Pushpa at a

distance of 5 to 6 houses from her house. It has not been

made clear whether this distance was towards the side of their

house or towards the opposite side of Pushpa‟s house. It is

possible that in a stage of stupor Pushpa walked 5 to 6 houses

away in the other direction and if this be so, it is but natural,

there being darkness outside, that Pushpa‟s presence on the

street went unnoticed. It could well be that so shocked and

overcome by events were Neena and her husband and the

only thought in their mind was to immediately go to Pushpa‟s

house and hence everything else went unnoticed. Does it not

happen, when on a mission, that everything else other than

the mission is missed by the mind. After all, it was only Arjuna

who could see, neither the branches nor the leaves, but only

the pigeon which he had to shoot when Guru Dronacharya

took his disciples to test their shooting skill.

33. We see no reason why Neena and Ajay would tell a

lie that Pushpa told them that Ashok i.e. the appellant had

stabbed her.

34. The last submission urged is that the testimony of

Neena shows that the appellant had loved Pushpa and the

problem was the four children of Pushpa from her first

husband. Learned counsel urges that it is apparent that the

appellant was overcome with emotion and hence he acted in a

fit of rage. Thus, counsel urges that the act of the appellant

attracts the offence of culpable homicide not amounting to

murder.

35. We reject the argument for the simple reason there

is evidence that the appellant used to beat Pushpa who left his

house and took away her children. It is apparent that the

appellant who was married and had a child had some kind of

an infatuation for Pushpa. If the argument as above is

accepted it would mean that every male who has an

infatuation for a female, on being spurned, would be entitled

to kill the female under pain of a lesser offence i.e. the offence

of culpable homicide not amounting to murder. Repelling the

overtures of an infatuated lover would not make out a case of

Exception IV to Section 300 IPC being attracted. The concept

of acting under the impulse of passion envisaged under

Exception IV to Section 300 IPC is premised on the passion and

the impulse being preceded upon a sudden quarrel.

36. Further, the seventeen injuries on the person of

Pushpa shows the determined mind of the appellant. His act

was preceded by a threat when Pushpa was attempted to be

strangulated that if she yelled, her throat would be slit.

Pushpa was faced with a Hobson‟s choice. Either to suffer

strangulation in silence or to cry for help. Obviously, the latter

was a better option for it could have summoned a rescue,

which unfortunately never came. Further, it shows that the

appellant acted with cruelty.

37. We find no merit in the appeal which is dismissed.

38. Since the appellant is in jail, we direct that a copy

of the instant decision be sent to the Superintendent, Central

Jail Tihar for being made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE APRIL 22, 2010 dk