Joginder Yesu Dass vs State
2013 Latest Caselaw 104 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                  Date of decision: 08th January, 2013


+                    CRIMINAL APPEAL 899/2012

         JOGINDER YESU DASS                      ..... Appellant
                  Through  Mr. A.J. Bhambhani, Advocate with
                           Ms.    Nisha      Bhambhani       and
                           Ms. Bhavita Modi, Advocates.

                     versus

         STATE                                        ..... Respondent
                     Through     Mr. Richa Kapoor, APP.

          CORAM:
          HON'BLE MR. JUSTICE SANJIV KHANNA
          HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J. (ORAL)

Joginder Yesu Dass impugns his conviction under Section 302

of the Indian Penal Code, 1860 (IPC) for murder of his wife Sheela

Dass in the intervening night of 26/27th May, 2011, vide judgment

dated 30th April, 2012 in Session Case No. 49/2011, arising out of FIR

No. 204/2011 P.S. Malviya Nagar. By the impugned order dated 4th

May, 2012, the appellant has been sentenced to life imprisonment and

fine of Rs. 20,000/-, in default of payment of fine, he has to undergo

Simple Imprisonment for three months.

2. Homicidal death of Sheela Dass stands undisputedly established.

Dr. Pankaj Kumar (PW-1), Senior Resident, AIIMS, Department of

Surgery has deposed that, on 27th May, 2011 at about 12.56 A.M.,

Sheela Dass was rushed to the hospital by her son Ashish Dass (PW-

10) with alleged history of being stabbed. On examination, it was

found that Sheela Dass had incised wounds over the abdomen and

chest region. The patient was unfit for statement, as is recorded in the

MLC (Ex. PW1/A). Sheela Dass was immediately shifted for further

treatment and as per the medical record (Ex. PW1/B) she had three

external injuries on her body. In the cross-examination, PW-1 has

averred that the injuries were on the vital body portion but he could not

say whether any vital organ of the body was damaged because that

could only be determined after internal examination.

3. Dr. Thejaswi (PW-6), Senior Resident, Department of Forensic

Medicines, Jai Prakash Naryan Trauma Centre, AIIMS, New Delhi has

deposed that, on 7th June, 2011, he had conducted post mortem of the

deceased Sheela Dass. He has proved his detailed report (Ex.PW6/A)

and verified that the deceased had three injuries and all were sufficient

in the ordinary course of nature to cause death. In his subsequent

opinion, (marked Ex. PW6/B), on examining the knife he has opined

that "it cannot be ruled out" that injuries were sustained with the said

weapon of offence.

4. The Post Mortem Report (Ex.PW6/A) records that Sheela Dass

had expired on 6th June, 2011 at about 3.10 P.M. while the treatment

was being administered. On internal and external examination, the

following injuries were noticed:-

(i) Surgically stitched incised stab wound measuring 1.6×0.1 cms obliquely oriented was present on the left side of the lower chest. The lower inner edge was located 5 cms from midline and 18 cms from left clavicle.

(ii) Surgically stitched incised stab wound measuring 2cms × 0.1 cms obliquely oriented was present on the left side of the upper abdomen, the lower inner edge was touching the midline and was located 21 cms below the suprasternal notch.

(iii) Surgically stitched incised stab wound measuring 1.6 cms × 0.1 cms obliquely oriented was present on the left side of the lower abdomen, inner edge was situated 6 cms from midline and 9 cms above the inguinal ligament.

The cause of death, as opined in Ex. PW6/A, reads as follows:-

"Septicemic shock and its complications due to peritonitis as a result of incised stab wound of the abdomen (injury no-2). All injuries are ante mortem in nature. Injury no 1, 2 and 3, individually and in combination of others, would be sufficient to cause death in ordinary course of life."

Ex. PW1/B is deceased's medical record which delineates surgical and

other treatments administered to the deceased by the hospital.

5. There are two eye witnesses to the occurrence, namely Ashish

Dass (PW-10) and Yebrina Dass (PW-12), the son and daughter of the

deceased and the appellant. The statements of the two natural eye

witnesses are categorical and veritable. PW-10 has testified that on

26th May, 2011, his father returned inebriated from his duty at about

8.00 P.M. and quarreled with all the family members, including his

mother till he went to sleep at around 10.00 P.M. At about 11.30 P.M.

he woke up hearing his father and mother fighting. He saw that his

father, who was on his mother, had a knife in his hand while his knee

pressed his mother's body. From the one hand he was throttling while

from the other hand he was giving knife blows to Sheela Dass. He

gave three knife blows on the chest and abdomen portion and blood

started oozing out from the wounds. PW-10 pushed his father aside

and knife fell from the appellant's hand. PW-10's sister also woke up

and both of them gave first aid to their mother. PW-10 and his sister

took their mother in an auto to the AIIMS Hospital where she was

admitted and attended to. The same night she was operated upon for

about 3-4 hours. PW-10 narrated all the facts verbatim to the police

and his statement (Ex.PW 10/A) was recorded. Thereafter, he returned

to the house with police officers but his father was not present there.

Photographs were taken, site plan was prepared and neighbours were

inquired by the police. On 28th May, 2011, PW-10 was called by the

police as they searched for his father around Chirag Delhi till the

appellant was found at Prachin Shiv Mandir and arrested. The

appellant was interrogated and, thereafter, on his pointing out the

weapon of offence i.e. the knife, it was recovered from underneath the

cushion in the house. The knife (Ex.P-1) was produced before PW-10

and he recognized it. PW-10 has stated that throughout the treatment

his mother i.e. Sheela Dass remained on the ventilator till she died on

6th June, 2011. In the cross examination, PW-10 agreed that, on 27th

May, 2011, police had come, and thoroughly searched the house and

had taken photographs at the crime spot. He has accepted that knife

was not found at that time. He has averred that relations between his

parents were not cordial because his father never gave the entire salary

to his mother. The given money was insufficient to run the house,

therefore, his mother did odd jobs outside the house, which use to

make his father suspicious.

6. Yebrina Dass (PW-12) has deposed on virtually identical lines

that at about 11.30-11.35 P.M., she heard cries of her mother and saw

her father giving knife blows to her mother. Her father was saying that

he would "finish her story that day". Her brother also woke up hearing

the noise. She immediately switched on the light, on which, she saw

that her father was pressing her mother's neck. She has deposed that

her brother intervened and twisted her father's hands, as a result of

which the knife fell down from his hands. They took their mother to

the hospital where she was treated till she expired on 6th June, 2011.

Minor contradictions in PW-12's statement, viz., the statement

recorded by the police under Section 161 Code of Criminal Procedure,

1973 were confronted to PW-12. The said discrepancies are whether

PW-12 had stated to the police that street light was coming from the

window and whether she had actually seen her father pressing her

mother's throat. According to us, these discrepancies are insignificant

and not material. These elaborations/improvement do not create a

doubt or dent her core deposition. PW-12 has indubitably implicated

her father, in her police statement and the Court, and has clearly stated

to the police that she had seen her father stabbing her mother.

7. Learned appellants counsel has argued that recovery of the knife

is doubtful and pointed out that the knife (Ex.P-1) was recovered from

the house itself from where father was absconding for many days.

Recovery attributed to the disclosure statement of the appellant (Ex.

PW4/C) is highly unbelievable as the police records suggest that, on

27th May, 2011, the entire house was scrupulously inspected by the

police in order to collect incriminating evidence and material. There

is, therefore, some merit in this contention of the appellant's counsel

but this is not a tenable ground to upset the appellant's conviction.

Even if the disclosure statement and the recovery pursuant thereto is

disregarded, statements of eyewitnesses PW-10 and PW-12 are

sufficient to implicate the appellant. We also notice that, as per the

FSL Report (Ex.PW 15/F1) blood could not be detected on the knife

(Ex. P-1) but blood was detected on the bed sheet and the cloth piece.

It cannot be ruled out that the appellant might have plausibly washed

the knife after PW-10 and PW-12 had rushed to the hospital with the

deceased. However, we record that bed sheet, on which blood stains

were found, was also not recovered by the police till 27th May, 2011.

This anomaly remains inexplicable as the police could have recovered

the bed sheet when it searched the house thoroughly for incriminating

evidence. However, this lapse, on prsecution's part, is nonfatal since it

does not shake the substratum of the case or the eye witness account

rendered by PW-10 and 12.

8. Learned counsel for the appellant has drawn our attention to the

medical records (Ex. PW 1/B) and highlighted that, on 27th May, 2011,

the patient i.e. Sheela Dass, was fully oriented and in effect it should

be presumed that she had the ability to speak and give her statement.

This argument cannot hold ground as it has come on record that the

deceased Sheela Dass was operated in the intervening night of 26/27 th

May, 2012. Surgical interventions have also been indicated in the Post

Mortem Report. On a plain reading of the medical records, one can see

that under column "responsiveness" the words "fully oriented" is

mentioned but it also delineates that the patient was earlier given

Anesthesia and, specifically under the heading "intervention

Management", "rapid Sequence Anesthesia" is mentioned. PW-10 has

averred that, after the surgery, his mother was on the ventilator. She

throughout remained on ventilator. It was not suggested to PW-10 that

the deceased was at any time in the position to make a statement. SI

Amit Choudhary (PW-14), in the cross examination, has deposed that

deceased Sheela Dass's statement was never recorded as she was

unconscious. He has repudiated the suggestion that the deceased

became conscious after two days and spoke to her daughter. PW-14

has deposed that he had been in touch with the doctors and, therefore,

he did not move any application for fitness of the deceased for her

statement. ASI Surender Singh (PW-15), in his cross examination, has

clarified that, in the MLC itself, doctor had opined that patient was

unfit for statement. Thus, this contention of the learned counsel of the

appellant has to be rejected.

9. The appellant, in his statement under Section 313 Cr.P.C., has

not disputed his presence in the house, at the time of occurrence. He

disputed and denied that knife and blood stained bed sheet were

recovered at his instance. He has averred that he was arrested from the

house. Regarding the testimony of his children, he has stated that they

are interested witnesses and have falsely implicated him. The

prosecution as recorded above has succeeded in proving otherwise.

10. Learned counsel for the appellant has challenged the conviction of the appellant under Section 302 IPC and submitted that his conviction, at best, could have been under Section 304, Part I. He

contends that there was a sudden quarrel as a result of which stab wounds were inflicted. We have duly considered the said argument, but the facts of the present case justify conviction of the appellant under Section 302 IPC. Testimonies of PW-10 and 12 reflect that there was a quarrel before the father had gone to sleep, at around 10.00 P.M. Thereafter, the two children woke up at about 11.30 P.M. and found that their father was giving knife blows to their deceased mother. PW-10 has impelled that when he woke up, after hearing noises, he saw that the appellant was pressing the throat of her mother while he kept his knee on her body. He has deposed that his father gave three knife blows to her mother and only on his intervention his father threw the knife. The fact that three knife blows were given by the appellant to his wife has also been mentioned and gets corroborated by PW-12's the statement. Post Mortem Report further accentuates that there were three incised wounds on the deceased's body. The knife blows were on the abdomen and chest area. This is not a case of simple or single injury. The appellant continuously attacked his wife with a knife and gave her three blows on the vital part of her body i.e. abdomen and chest with the purpose of finishing her. Looking at the nature of the attack, the manner in which it was done, the factum that the appellant got up at night after having gone to sleep to attack his wife, while the children were sleeping and could not rescue her, justifies his conviction under Section 302 IPC. As recorded the three injuries individually and in combination were sufficient to cause death in the ordinary course of nature (see Post Mortem Report Exhibit PW-6/A). About hour and a half after the altercation between the deceased and the appellant, the appellant struck the deceased, while the two children were asleep, inflicting three grievous wounds. The conduct of the appellant, as narrated

above, cannot be said to fall within the ambit of Section 300 Exception 4 as it was not a sudden quarrel, in heat of passion. The appellant has acted in a cruel and unusual manner.

11. In view of the aforesaid position, the appeal is dismissed. The

conviction and the sentence of the appellant are maintained.

SANJIV KHANNA, J.

SIDDHARTH MRIDUL, J.

JANUARY 08, 2013 NA/VKR