Delhi High Court

Radha Krishan Nair vs State on 19 January, 2010

Author: Pradeep Nandrajog

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                               Date of Decision: 19h January, 2010


+                    CRL.APPEAL NO.78/2005

       RADHA KRISHAN NAIR                        ......Appellant

                Through:   Mr.K.K.Rai, Sr. Advocate with
                           Mr.Bankey Bihari and Mr.S.K.Pandey,
                           Advocates

                                Versus

       STATE                                     ......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 the Reporter or not? Yes

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

PRADEEP NANDRAJOG, J.(Oral)

1. With reference to the eye witness account deposed

to by Sanjay Kumar PW-1, the son of the appellant and finding

corroboration to what he said and saw through the testimony of

Neetu PW-3, vide impugned judgment and order dated

16.11.2004, the appellant has been convicted for the offence of

having murdered his wife. The learned Trial Judge has also

noted that as per the report Ex.PW-19/C of the serologist, the

blood group of the deceased was „O‟ and that blood of the same

group was detected on the lungi and the underwear of the

appellant which were seized at the spot where the crime was

committed; for the reason the appellant was apprehended in

the house when he committed the crime.

2. That Sunita, the wife of the appellant died a

homicidal death is not in dispute. The post-mortem of Sunita‟s

dead body was conducted by Dr.Gaurav Vinod Jain PW-5 and as

per the post-mortem report Ex.PW-5/A as many as 7 injuries

were noted on her body. The same are as under:-

"1. A deep cut throat incised wound, 12.5 cms x 6.8 cms x 3 cms present transversely over the front of neck, 6 cm s above the supra sterna notch. The injury was present at the lower level of thyroid cartilage and had cut through the under line thyroid cartilage, trachea, esophagus and jugular vessels of both the sides. The sternomastoid muscles on both sides also cut partially.

2. Muscle deep incised wound, 6.3 cm x 1.5 cm present transversely on the left side of neck 2 cm above the left lateral part of injury No.1.

3. Incised wound 3.1 cm x .5 cm over right index finger on the outer side near the face. The wound is superficial.

4. Superficial incised wound 1.5 cm x .3 cm on the palmer aspect of right ring finger, transversely over the distal interphalyngeal joint.

5. Superficial incised wound 1.2 cm x .3 cm present transversely over the palmer aspect of middle of left ring finger.

6. Linear fresh abrasion 3 cm x .3 cm present obliquely over the left side of chin.

7. Fresh abrasion 3.4 cm x 3 cm over the right buttock."

3. Internal examination revealed that death was a

result of haemorrhagic shock due to injury No.1. As noted

above, injury No.1 was a deep cut on the neck resulting in the

trachea, esophagus and the jugular vain of both sides of neck

being cut.

4. It may be noted that all injuries were opined to be

ante-mortem.

5. As deposed to by Sanjay Kumar PW-1 who was aged

12 years when he deposed on 7.5.2001; the date of the crime

was 3.7.2000; the place was the residential house of the

appellant and the deceased.

6. Sanjay Kumar PW-1 deposed that his mother was

dead. She died on 3.7.2000 and was killed by her father who

was present in Court. That the weapon of offence was a knife.

His father cut the throat of his mother. The incident took place

at about 10:15 PM. There used to be quarrels between his

parents; cause whereof was not known to him. His father cut

the throat of his mother. He was making his books. Next day

they were to go to Kerala. His mother had cooked noodles. His

brother Aditya was sleeping in the house. He tried to pull his

father from the back to save his mother but his father pushed

him aside. There was a lot of bleeding due to injury inflicted by

his father on the throat of his mother. His mother died in the

house itself. The house No. was O-3/2, Police Colony, Andrews

Ganj, New Delhi. On seeing the incident he shouted. Neetu,

their neighbour came to the house when he opened the door.

Khazan Singh, another neighbour came to the house.

7. On being cross examined he stated that his father

used to take him to a temple. His father had taken him to

Haridwar. On returning from Haridwar his father told him that

his mother was un-chaste. His father told him to tell his mother

that she should live properly. There used to be frequent quarrel

between his parents. He was not aware of any personal

relationship which his mother had with any person. The day

next to the incidence they were to go to Kerala but his mother

was not wanting to go to Kerala as they had recently come from

Kerala and would say as to what would people say if they

returned to Kerala. That his father made the program of going

to Kerala of his own without telling anyone. That he did not

know why his father wanted to send his mother to Kerala. His

father had purchased the ticket of Mangla Express from Delhi to

Kerala. He denied that his mother had mixed some intoxicating

things in the noodles due to which his brother became sleepy.

He volunteered further information that he ate the noodles and

did not feel sleepy. That he ate the noodles from the plate of

his father and younger brother. He admitted the suggestion that

his father refused to eat noodles but stated that he did not know

the reason why he refused to do so. He admitted having told

the police that on the night of the incident his father told him

that his mother had mixed sleeping pills in the noodle. He

admitted that his father did not take dinner. He denied that on

the night of the incident there was a quarrel, but admitted that

in his statement made to the police he had stated that there

was a quarrel between his parents in the night.

8. Neetu, the lady in the neighbourhood whose name

stands disclosed in the statement of Sanjay Kumar PW-1

deposed as PW-3.

9. As per Neetu, she was present in her house with her

children on 03.07.2000 and heard the noise of foot tapping from

neighbourhood. She thought that the noise was created by the

children of her neighbour Radha Krishan i.e. the appellant.

Thereafter she heard the voice of Sanjay Kumar PW-1 who was

saying "Nahi Achan-Nahi Achan". She came out and push the door

of her neighbour Radha Krishan and found the same was closed.

She peeped inside and saw Sunita wife of Radha Krishan lying in a

pool of blood. The accused Radha Krishnan was looking into the

wound at the neck of Sunita. She cried "bhai sahib ye aap ney

kya kar diya". She got perplexed and ran and called Khazan

Singh. Sanjay opened the door and Sunita appeared on the

door. Sunita made a gesture asking for her younger child. Two

more neighbour came and lifted Sunita in their lap. She was

removed to the hospital but died mid way. She identified the

appellant as the accused Ram Krishnan.

10. Khazan Singh PW-4, the second person named in the

deposition of Sanjay Kumar, deposed that on 03.07.2000 he was

present in his quarter when Neetu (PW-3) came at about 10:25

PM and knocked at his door. When he came out he saw that

Sunita standing at the door of her quarter, she was bleeding

from neck. He called the PCR by dialing number 100.

11. Having perused the testimony of Sanjay Kumar,

Neetu and Khazan Singh it is apparent that Neetu has

corroborated the presence of Sanjay Kumar in his house.

Khazan Singh has corroborated the presence of Neetu in her

house.

12. That the crime took place at around 10:20 PM in

night has not been seriously disputed before us by the learned

counsel for the appellant.

13. To discredit the testimony of Sanjay Kumar, learned

counsel points out that there are improvements in the

testimony of Sanjay Kumar which are suggestive of Sanjay‟s

determination to ensure the conviction of his father. It is

highlighted that Sanjay Kumar has deposed in Court that he not

only consumed the noodles which was served to him but even

ate some noodles from the plate of his father as also the plate

of his brother. It is urged that Sanjay Kumar is intending to

prove that his mother never put any intoxicating material in the

noodles. Second contentions urged to discredit Sanjay Kumar is

by pointing out that as per Sanjay Kumar his mother had died in

the house itself and thereafter on his shouting Neetu came to

their house. Counsel points out that as per Neetu and Khazan

Singh when Sanjay opened the door they say Sunita standing on

the door and the blood was oozing from her neck.

14. Both submissions urged by learned counsel are an

attempt to clutch to straws.

15. Sanjay Kumar was aged 12 years when he deposed

and his testimony has to be read with common sense. While

deposing, with reference to the injuries inflicted upon her

mother he stated that his mother died in the house itself. After

making said statement he disclosed the house number and

went on to state that when he shouted Neetu came and he

opened the door. This does not mean that as per the witness

i.e. Sanjay, his mother had died before he had opened the door.

The young boy has given the narration of the events which he

saw and that he mother had died is merely his opinion. Sanjay

does not say that he checked the pulses of his mother.

16. The testimony of Sanjay has to be read in the light of

the fact that he was aged 12 years when he deposed and saw

the incident when he was 11 years of age; his utterance and

deposition have to be understood and appreciated as disclosed

by a child aged 12 years.

17. In his examination-in-chief, Sanjay Kumar never

introduced any version about his eating noodles from the plate

of his father and his younger brother. These statements of

Sanjay Kumar have emanated when she has been cross-

examined by the learned counsel for the appellant. Thus, we

see no scope for an argument that Sanjay Kumar has made any

intentional improvements vis-à-vis what he told to the police.

18. It need hardly be stated that the giver of a fact

discloses only such facts which he feels are relevant to be

disclosed. It depends upon the skill of the person receiving

information to extract further facts. It may happen that the

investigating officer thought it irrelevant to ask any questions

from Sanjay Kumar pertaining to Sanjay Kumar eating noodles

when the investigation officer recorded the statement of Sanjay

Kumar. That apart, the issue of Sanjay Kumar telling that he

ate noodles from three plate is absolutely irrelevant.

19. From the testimony of Neetu, an important fact has

emerged; the same is the contemporaneous utterances of

Sanjay heard by Neetu. As per Neetu she head Sanjay saying

"Nahi Achan-Nahi Achan"

20. From the testimony of Sanjay Kumar it is apparent

that his parents and he were natives of the State of Kerala and

the word "Achan" in Malayalam means "Father". Thus, the

contemporary utterances of Sanjay "Nahi Achan-Nahi Achan"

mean "No Father-No Father". This means that when the crime

was being committed or just the moment thereafter, Sanjay was

contemporaneously saying "No Father-No Father". This also

points to the fact that Sanjay was wanting his father from

desisting to do something. Obviously, common sense tells us

that the something was the assault on Sanjay‟s mother.

21. The testimony of Neetu also establishes that the door

of the house was closed when the crime was committed. No

outsider was seen by her inside the house or running out. The

only persons inside the house were the appellant, his wife and

his two sons who were both minor.

22. What better quality of evidence can be led by the

prosecution to nail the guilt of the appellant. We think no more

was required to be proved.

23. That the appellant was apprehended in his house and

the lungi and underwear worn by him found to be stained with

human blood of the same group as that of the deceased person;

wherefrom his clothes got so stained not been explained by the

appellant, we concur with the view taken by the learned trial

Judge that the evidence on record establishes that the appellant

has committed the acts which has resulted in the death of his

wife.

24. A last argument urged by learned counsel for the

appellant may be noted. Counsel urges that from the testimony

of Sanjay it is apparent that there was a quarrel between the

parents and as a result of quarrel, on the spur of the moment

the appellant picked up the kitchen knife and stabbed his wife.

Thus, counsel urges that exception 4 to Section 300 IPC is

attracted and hence his act reveals the offence punishable

under Section 304 Part I IPC.

25. We have noted hereinabove the injuries caused by

the appellant on his wife. Indeed, the attack is savage and

brutal. That apart, „a sudden fight in the heat of a passion upon

sudden quarrel', the phrase used in exception 4 to Section 300

need to be highlighted by us.

26. Exception 4 to Section 300 IPC reads as under:-

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

27. The requirement of exception 4 is that upon a

sudden quarrel, in the heat of the passion a sudden fight takes

place. Fighting means a physical contact between two persons.

Sudden fight means where the origin of who is the initiator of

the physical contact is not ascertainable. Exception 4 does not

come into operation merely upon there being a verbal quarrel,

with the victim not making any threatening gesture or indulging

in a physical fight. Any other interpretation would make

vulnerable virtually every second housewife in India. Statistical

data show that notwithstanding advancement of education, wife

beating continuous to be a norm in India with 50% of wives

reporting violence at the hands of their husbands.