Sudhir @ Sudeep Kumar vs State
2014 Latest Caselaw 4427 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision: September 15, 2014

+                                   CRL.A. 876/2014

         SUDHIR @ SUDEEP KUMAR                     ..... Appellant
                  Represented by: Mr.Avninder Singh, Advocate with
                                  Ms.Sumi Anand, Advocate

                                           versus

         STATE                                               ..... Respondent
                         Represented by:   Mr.Varun Goswami, APP
                                           Insp.Lokinder Singh and SI Sahdev
                                           Singh, PS Jaitpur

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

Crl.M.B.No.10119/2014

1. On the last date of hearing we had intimated to learned counsel for the parties that if for some reason arguments would not be heard in the appeal, Crl.M.B.No.10119/2014 shall be heard today.

2. Since the appeal is being heard today itself the application seeking suspension of sentence pending hearing of the appeal is dismissed. Crl.A.No.876/2014

1. Sudhir - the appellant has been convicted for the offence of having murdered his wife Ruby. The learned Trial Judge, vide decision dated January 30, 2014, has heavily relied upon the testimony of Ms.Meenu PW-5,

the sister of the deceased, as also the fact that after he was arrested, and pursuant to the disclosure statement made by him, the appellant got recovered a knife Ex.P-3 which was opined by Dr.Ashish Jain PW-20, who conducted the post-mortem on the dead body of the deceased, as capable of inflicting the injuries which caused Ruby's death. Lastly, the learned Trial Judge has opined that on the pant Ex.P-4 which appellant was wearing when he was apprehended the next day, human blood was detected.

2. Learned counsel for the parties concede that it would all depend upon the testimony of Ms.Meenu PW-5, for the reason if she is discredited, the recovery of the knife Ex.P-3 at the instance of the appellant, which was opined to be the possible weapon of offence and blood being detected on the pant Ex.P-4 worn by the appellant would be insufficient circumstantial evidence to point towards the appellant's guilt.

3. We therefore have perused Meenu's testimony.

4. She has deposed that her brother-in-law- the appellant, her sister Ruby, her mother Ramwati and she were residing together and her mother was working as a house maid at Jasola Vihar in which house her brother-in- law was employed as a guard. Her brother-in-law's duty time was from 8:00 PM to 8:00 AM. Under influence of alcohol he used to beat her sister and used to demand money to purchase alcohol. On February 14, 2011, Sushil, the brother of her brother-in-law came to their house at 4:00 PM and gave raw meat to her sister for cooking next day. Her sister cooked the meat next day and kept a portion thereof for Sushil, at which her brother-in-law quarrelled with her sister. Her brother-in-law left for work at 8:00 PM and returned the next morning at 9:00 AM. He demanded money from her sister to purchase alcohol. Her sister refused. Her brother-in-law rested on the

bed. She placed a bucket of water for her sister to wash clothes and came down. Her brother-in-law also left but returned after half an hour and went upstairs. He left thereafter after 1-1½ hours. She went upstairs and found her sister lying on the floor, blood smeared all over. Her throat had been cut. None except her sister and her brother-in-law were in the room.

5. During cross-examination she admitted that her brother Pintoo also used to reside with them. She admitted that she was not a witness to the murder of her sister.

6. Nanhe Lal PW-6 deposed that his son told him that Sudhir - the appellant had killed his wife and had run away (a testimony which is clearly hearsay). But relevant would it be to note, since an argument has been advanced by learned counsel for the appellant, that he admitted to the fact that Sushil, the brother of the appellant also used to reside in the same house.

7. Pintoo PW-7, the brother of Ruby, deposed that Sudhir used to quarrel with his sister after drinking and demanded money from her. He did not claim to be an eye witness. But relevant would it be to note that during cross-examination Pintoo stated that he was not residing with his sister.

8. Examined under Section 313 Cr.P.C., the appellant explained the death of his wife in the undernoted words while answering question No.14, and thus we note the question and the answer:-

"Q.14 It is in evidence against you that on the day of incident, your brother Sushil had come to your house at 4.00 P.M. having meat with him which was cooked by wife next and some of which was kept for Sushil, on which you raise a quarrel with your wife and you ate all meat including which was kept for Sushil and then you went to work. What you have to say?

Ans. It is true that Sushil had come to our house on that day and he was present in the house when I returned from the duty. It is also true that quarrel took place with Sushil and my wife about cooking of food. Sushil was hitting me but accidently I escaped and a knife hit my wife."

9. We need to speak about the question, and with regret, for the reason the learned Trial Judge has clearly overlooked the fact that as per the evidence Sushil had not come to the house on the day of the incident. The day of the incident is February 16, 2011. Sushil had come to the house two days prior, as deposed to by Meenu, on February 14, 2011. He had left meat for being cooked by Meenu. Next day i.e. February 15, 2011 Meenu had cooked the meat and had kept a portion for Sushil but appellant raised a quarrel and ate the meat kept for Sushil. He left for work at 8.00 P.M on February 15, 2011. He returned in the morning next day i.e. on February 16, 2011.

10. Be that as it may, as per the appellant his wife was hit by the knife when the blow was directed by Sushil towards him.

11. In view of the defence, argument urged by learned counsel for the appellant is that as per Nanhe Lal, Sushil the brother of the appellant used to reside in the same house and Pintoo, Ruby's brother has deposed that he was not residing with his sister. According to learned counsel for the appellant this means that Sushil was in the house and this probabilizes the defence.

12. The argument is fictional. Nanhe Lal's admission during cross- examination that even Sushil used to reside in the same house is irrelevant for the reason whether he used to reside in the same house or not makes no difference because Meenu has categorically deposed that apart from she, her sister and the appellant no one else was present in the house when her sister

received the injuries. Further, Meenu's post mortem report Ex.PW-20/A shows that she had two deep incised wounds on the neck, both were horizontally placed. The first wound was having length of 11 cm and the second of 6.5 cm. Besides, she had abrasions over left side of face. It is apparent that she was hit on the face and her neck was slit. Besides, we wonder how said line of reasoning can discredit Meenu. Further, if, as claimed by the appellant, his wife suffered the injury when Sushil attacked the appellant and the appellant successfully avoided the assault. Only one injury would be caused to Meenu and not multiple. Further, this means that the appellant was present in the house and if the incident was true, as the husband of Meenu he would have immediately rushed her to the hospital. The appellant had absconded.

13. To discredit Meenu, it was urged that DD No.18A, Ex.PW-10/A simply records a lady being injured and her daughter being present in the house. This means, as is urged, that Meenu has cooked up a story.

14. DD No.18A registered at P.S.Jaitpur on February 16, 2011 at 11.57 A.M. records that an informant has informed to the police control room that a man has cut the neck of his wife. Who was the informant, nobody knows. But surely the contents of DD No.18A cannot discredit Meenu.

15. It was then urged that DD No.18A records the time of information being received by the police at 11.57 A.M. Learned counsel urges that as per Meenu the appellant returned after night duty at 9.00 A.M. and quarrelled with the deceased. Meenu came down and saw the appellant leave the house after 1 or 1½ hour and at that time Meenu went up and saw her sister in an injured condition, meaning thereby that the time when Ruby was injured was between 10.00 A.M. and 10.30 A.M.

16. Now, Meenu was not looking at the watch when she spoke about the time when appellant returned home after the night shift. She did not measure the time gap by looking at a watch.

17. We note that as per Brij Nandan Dubey, PW-1, who has not been cross-examined in spite of opportunity being granted the appellant was employed by Jordan Security Services and was deputed as a guard at house No.142, Pocket-I, Jasola, New Delhi and his duty hours were from 8.00 P.M. to 8.00 A.M. This establishes that the appellant used to perform night duties and be in this house in day time.

18. We affirm the view taken by the learned Trial Judge and dismiss the appeal maintaining the conviction and the sentence to undergo imprisonment for life imposed upon the appellant.

19. Since the appellant is still in jail two copies of the present decision be sent to the Superintendent, Central Jail Tihar. One for his record and the other to be supplied to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE SEPTEMBER 15, 2014 mamta/skb