Rajinder Kumar vs State
2010 Latest Caselaw 1183 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: 3rd March, 2010


+                        CRL. APPEAL NO.581/2006


         RAJINDER KUMAR                              ..... Appellant
                   Through:         Mr.Mukesh Jain, Advocate.

                                    Versus

         STATE                                      ..... Respondent
                         Through:   Mr.M.N.Dudeja, 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?             Yes

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


PRADEEP NANDRAJOG, J. (Oral)

1. Vide judgment and order dated 17.2.2006 the

appellant has been convicted for the offence of having

murdered his wife as also for the offence of attempting to

commit suicide.

2. For the offence of murder, the appellant has been

sentenced to undergo imprisonment for life and for the offence

of attempting to commit suicide he has been sentenced to

undergo simple imprisonment for one year.

3. That the wife of the appellant was fatally stabbed;

stab wounds being 13 in number, and that the place where she

died was the two room tenement on the first floor of the house

taken on rent by the appellant is not in dispute and learned

counsel for the appellant concedes the said position.

4. What is debated is the claim of the prosecution that

the appellant fatally stabbed his wife and followed the same by

attempting to commit suicide versus the claim of the appellant

in response to question No.111 when he was examined under

Section 313 Cr.P.C. His statement being as under:-

"I am an auto rickshaw driver. On 26.6.2004 in the morning hours I took out my auto rickshaw and went to ply the same. In the morning my wife told that she would go to her parent's house as the telephone call of my sister have to come on that telephone. The telephone was installed at the parental house of my wife. In the afternoon I returned and went to my matrimonial house to give some money to my wife for purchasing the daily goods. At that time my wife told me to give it to my mother in law to purchase some vegetables for that day. My wife told me that she is going back to my house as she has to store the drinking water. In the evening hours I again took out my auto rickshaw and when I was standing at back side of Birla Mandir waiting for the passenger. I saw that my wife was coming with some stranger. On having seen me that stranger ran away. I brought my wife back to my house and after dropping her there I went to my in-laws house to make complaint about this matter. I complained to my mother-in-law telling her that my wife is a mother of two children and her this conduct would spoil the career of my children. I

stayed for some time in my matrimonial house. My mother in law offered me tea and told me that when father of my wife would return in the evening she would have a talk with him about this. After some time when I was returning to my house on the way I met with the same stranger and some other fellows. They picked up a quarrel with me and after that I returned to my house. My wife was annoyed with me on that day. She did not cook any meal. I went upstairs to the house of Rajesh to fetch some food for me. In the meantime I heard some screams and when I came downstairs immediately I saw that stranger along with two of his associates was stabbing my wife. They also caused injury to me and fled away from there. I know that stranger by face only. I do not know his name and his address and same is my statement for the other two associates. This is the genesis of the whole occurrence. I have been falsely implicated. I have no role in this occurrence. I have not killed my wife. I am innocent."

5. Let us begin with an analysis of the stand taken by

way of defence by the appellant.

6. According to him, the day was 26.6.2004. We note

that it is incorrect for the reason the date was 27.6.2004. As

per him, his wife told him in the morning that she would be

going to the house of her parents as her sister would be

ringing up there. He went out for his avocation and thereafter

he went to the house of his in-laws (wrongly referred to as his

matrimonial house). He had to give money to his wife for

purchasing daily goods. His wife told him to give money to her

mother. His wife told him that she would go back to their

house. In the evening hours, he plied his auto-rickshaw and

when he was standing at the rear of Birla Mandir waiting for

passengers he saw his wife coming out with some stranger.

On seeing him, the stranger ran away. He brought back his

wife to his home and after dropping her there went to the

house of his in-laws to make a complaint regarding the

conduct of his wife which was spoiling the career of his

children. He stayed for some time in his matrimonial house.

His mother-in-law offered him tea. He returned to his house

after some time and on the way met same stranger and

another fellow who picked up quarrel with him. He returned to

his house. His wife was annoyed with him. She had not

cooked any meal. He went upstairs to the house of Rajesh to

fetch some food. He heard screams and when he came down

he saw the stranger along with two associates stabbing his

wife. They also caused injury to him and fled away. He knew

the stranger by face only but knew nothing more.

7. Rajesh PW-1, the person whom the appellant has

referred to in his statement under Section 313 Cr.P.C. resides

in the same building on the second floor. He resides with his

family. As per him, the appellant and his wife were not having

cordial relationship. Rinki was the sister of the wife of the

appellant. Sumitra was the name of the mother-in-law of the

appellant. On 27.6.2004 when he returned to his house he

saw Sumitra and Rinki in the house of the appellant. After

some time the appellant left the house to see off his mother-

in-law. His i.e. Rajesh's family alongwith Rinki and Pooja, wife

of the appellant were watching television in his i.e. Rajesh's

house. The appellant walked in and asked Rinki to prepare

meal for him. His i.e. Rajesh's wife prepared food. Appellant

and his wife took the food to their room saying that they would

eat together. After 5/7 minutes he heard screams from the

room of the appellant. He and Rinki went down. The light in

the room was switched off. He i.e. Rajesh switched on the

light and saw the appellant stabbing his wife who was on the

floor. He tried to save her. The appellant stabbed himself in

his abdomen. He immediately left to inform Pooja's parents

who lived 15/20 meters from his house and told them said

facts. The chacha of the wife of the appellant telephoned the

police who reached the spot after 10 - 20 minutes. The police

took the wife of the appellant and the appellant to the hospital.

He accompanied them to the hospital. His statement Ex.PW-

1/A was recorded by the police and that he returned to the

spot where a knife was seized vide memo Ex.PW-1/B. That

various blood-stained things were picked up as entered in the

various memos at the spot.

8. On being cross-examined Rajesh stated that he was

not aware that one could ring up the police through the PCO.

He stated that he reached the house of the mother of the

deceased at around 9/9:15 PM and that he left the house

where the crime took place at 8:30 PM. That he remained in

the house of the mother of the deceased for 15/20 minutes

and returned. He stated that he made an attempt to save the

deceased from the appellant but as he approached the

appellant threatened him with a knife. He denied that he was

deposing falsely at the instance of the police.

9. Before noting the testimony of other witnesses, as

stated by learned counsel for the appellant, there appears to

be a typographic error in the recording of examination-in-chief

of the witness where he stated that the house of parents of the

deceased Pooja was at a distance of about 15-20 meters from

his house. It appears that he wanted to state that the house of

Pooja's parents was 15/20 minutes distance from his house.

We say so for the reason, on being cross-examined, he stated

that he left his house and at around 8:30 PM and reached the

house of parents of Pooja at around 9/9:15 PM.

10. Rinki PW-2 stated that the appellant was her

brother-in-law, being married to her sister Pooja. On

27.6.2004 Pooja came to the house of her parents at around

11:00 AM and informed that the appellant has asked for

Rs.50,000/- to purchase a vehicle and for this reason was

quarrelling with her. She and her mother reached the house of

accused at 4:30 PM. Pooja went with them. Her mother

returned to her house at 7:00 PM and was dropped by the

appellant who returned after some time. She, her sister Pooja,

their two children, Rajesh and his wife Guriya, were watching

television when appellant asked her to cook food. She refused

as she was having a headache. Guriya, wife of Rajesh cooked

the food. Appellant and his sister Pooja came downstairs to

share food in the room. After 5 minutes she heard cries of his

sister. Rajesh and she responded. There was darkness.

Rajesh switched on the light. She saw the appellant stabbing

Pooja who was on the floor. They tried to save Pooja.

Appellant threatened them with a knife and then inflicted a

blow in his abdomen.

11. Rinki has been cross-examined but nothing of

substance has been pointed out which is worthy of being

noted.

12. We would be referring to the argument of learned

counsel for the appellant pertaining to Rinki's conduct.

13. Smt.Guriya PW-3 deposed in sync with her

husband.

14. Smt.Sumitra PW-4, the mother-in-law of the

appellant deposed in sync with the testimony of Rinki up to the

point Rinki deposed that she left the house of the appellant at

around 7:30 PM and that the accused had dropped her to her

house.

15. Sumitra has not been cross-examined.

16. The submission urged at the hearing of the appeal

today is that neither Rajesh nor Rinki nor Guriya could have

seen the incident as claimed by them for the reason their

conduct is most unnatural. Counsel urges that Rinki is the

sister of Pooja and if indeed she saw Pooja grievously injured

she would have immediately rushed her sister to the hospital.

With reference to the testimony of Const.Balbir Singh PW-14

and SI Rajesh PW-19, the two police officers who reached the

place of the crime at around 9:15 PM after DD No.35A Ex.PW-

13/A was registered at the police station and found Pooja as

also the appellant in the room with grievous injuries, counsel

urges that it is obvious that Pooja and the appellant were in

the room lying in an injured condition for at least 30 minutes.

17. Further, learned counsel draws attention to the

statement made by Rinki that the appellant struck a blow on

the person of Rajesh Kumar and that Rajesh Kumar has

nowhere deposed to said fact.

18. Lastly, learned counsel urges that Rajesh Kumar

cannot be believed inasmuch as apart from his conduct of not

rushing the deceased to the hospital, his not ringing up the

police from a police booth and his claiming ignorance that he

did not know that he could ring up the police through a PCO

booth and his claim of going to the house of parents of Pooja is

most unnatural.

19. Before dealing with the 3 submissions urged by

learned counsel for the appellant it would be relevant to note

that no suggestion has been given to PW-1 to PW-3 that any

other person was seen by them stabbing the deceased and the

appellant. No suggestion has been given to the three that

they actually saw somebody else do the crime.

20. Much would therefore turn on proof of PW-1 to PW-3

being present where the crime was committed as claimed by

them.

21. Smt.Sumitra PW-4 has stated that her daughter

Pooja who was married to the appellant had come to Sumitra's

house in the morning of 27.6.2000 and had informed that the

appellant was quarrelling with her as he was demanding

Rs.50,000/-. She and her daughter Rinki went to Pooja's house

at around 4:30 PM to counsel the appellant not to fight with

Pooja. That she remained with the appellant in his house till

she was dropped back by the appellant at around 7:30 PM.

22. Sumitra, as noted above, has not been cross-

examined with reference to her testimony. The only

suggestion put to her is that she never saw the incident of

stabbing; a fact which she admitted.

23. Her statements that she went to the house of the

accused with her daughter Rinki and that only she returned to

her house have not been challenged. Thus, Sumitra PW-4 has

proved Rinki's presence in the house of the appellant when

Sumitra left the house of the appellant at around 7:30 PM.

24. Thus, the statement by way of defence when the

appellant was examined under Section 313 Cr.P.C. is

completely false and his said stand, which was never taken by

the appellant when said persons were tendered as witnesses

of the prosecution, is false.

25. Dealing with the 3 submissions urged by learned

counsel for the appellant, it requires to be noted that the

weapon of offence, sketch whereof is Ex.PW-1/C, shows that it

is a knife tapering toward the tip having blade with thickness

of 4 cm at the center of the blade. Total length of the knife is

31 cms. The length of the blade is 20 cms.

26. That Rajesh and Rinki claimed that they could not

do much as the appellant threatened them with a knife has to

be accepted, keeping in view that the knife was indeed of

threatening proportions.

27. That Rajesh, Rinki and Rajesh's wife did not rush

Pooja to the hospital is not, in the circumstances of the instant

case, a circumstance wherefrom an adverse inference

relatable to their conduct can be inferred.

28. The post-mortem report Ex.Pw-15/A of Pooja

evidences 13 stab wounds all over the body.

29. It is within the realm of probability that he who saw

the incident realized instantaneously that the victim is no

more. Indeed, Pooja was brought dead at the hospital. It is

thus quite probable that the one who witnessed the crime

thought that it would be useless to render any assistance and

thus it would be desirable to preserve the scene of the crime

as it is.

30. That Rinki says that when an attempt was made to

rescue the deceased, the appellant hit Rajesh and Rajesh not

saying so is not a contradiction which is destructive of the

testimony of the two witnesses. We have noted above that

Rajesh claimed to have tried to save the deceased but

retracted when he was threatened with a knife. Rinki who was

behind Rajesh may have seen the movement of the hand of

the appellant directed towards Rajesh and what she saw

perceived in her brain was as if Rajesh was hit. Thus, she is

not a liar.

31. The statement of Rajesh that he tried to intervene

and retracted when threatened, is explainable with reference

to the testimony of Rinki that when Rajesh tried to intervene

he was hit by the appellant.

32. The claim of Rajesh that he is not aware whether

the police could be rung up at No.100 through a PCO booth

needs to be understood with reference to whether he was

aware that through the PCO booth the police could be rung up

at No.100.

33. It may happen that a person may not have change

with him to put inside the PCO booth; requiring the person to

look for a landline number.

34. That apart, a person may be of soft nerves and not

of nerves of steel. Such a soft person may not like to get

involved with the process of law and the conduct of such

person to go to the house of the relative of a victim to inform

about the crime is not such conduct wherefrom such degree of

unnaturalness can be inferred so as to discredit the very credit

of the percipient evidence of such witness.

35. We note that PW-3 has made an improvement vis-

à-vis her statement to the police under Section 161 Cr.P.C. In

her statement under Section 161 Cr.P.C. she has stated facts

as deposed to by her husband and Rinki, but limited till the

point when her husband and Rinki ran down on hearing the

cries of Pooja from the first floor tenanted premises of the

appellant. The improvement is that, while deposing in Court,

she claims to have also come down and when her husband

switched on the light in the room of the appellant she saw

Pooja being stabbed by the appellant.

36. It is apparent that while deposing in Court Guriya

has somewhat mixed up facts which she must have heard vis-

à-vis the facts which transpired in front of her eyes. We

discard her testimony of having seen the appellant stab Pooja

in the matrimonial house of Pooja; but she corroborates the

other two witnesses that after she cooked the meals the

appellant took his wife to his tenanted premised to take food

and within 5-7 minutes thereof shrieks of Pooja were heard

from her matrimonial house.

37. Having taken note of and dealt with the

submissions urged by learned counsel for the appellant, none

of which compel us to alter the impugned judgment, we

dismiss the appeal and maintain the sentence imposed upon

the appellant.

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

the present decision be sent to the Superintendent Central Jail

Tihar to be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE March 03, 2010 dkb / mm