Raju vs State
2016 Latest Caselaw 4031 Del

$~R-65
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision : May 26, 2016

+                        CRL.A. 249/2015

      RAJU                                           ..... Appellant
                    Represented by:   Mr.Pramod Kumar Dubey, Advocate

                                      versus

      STATE                                            ..... Respondent
                    Represented by:   Mr.Varun Goswami, APP with
                                      SI Rajender Sharma, PS Shahdara

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

PRADEEP NANDRAJOG, J. (Oral)

1. Charged for the offence of having murdered his wife Padma, but proved to be appellant's live-in partner, Raju has been convicted for the offence punishable under Section 304-II IPC. The decision is dated November 12, 2014. He has been sentenced to undergo RI for 5 years and pay fine in sum of `10,000/-, in default to undergo SI for 6 months as per order on sentence dated November 19, 2014.

2. There is an eye witness to the incident. He is the uncle (fufa) of the deceased. His name is Prem Kumar. He has deposed as PW-2.

3. Though in his examination-in-chief he has said that the appellant was the husband of his niece Padma but during cross-examination admitted that the two were not formally wedded but they were having a live-in relationship.

4. But that does not matter because the fact in issue is not whether appellant and Padma were husband and wife. The fact in issue is whether the appellant caused the fatal injury to Padma as a result whereof she died and if yes, what is the offence committed?

5. The testimony of Prem Kumar evinces that he was present in the house on January 20, 2013 at about 4:30 PM. Appellant and Padma were having an acrimonious exchange of words concerning money. He tried to counsel the two but failed. They kept on remonstrating. In the heat of the moment Padma aggravated the situation by clawing the appellant in his eyes, a version corroborated by appellant's MLC Ex.PW-6/B, proved at the trial by Dr.P.K.Phukan PW-6 because Dr.Ranjeet who had authored the same was not available and Dr.P.K.Phukan was familiar with the handwriting and signatures of Dr.Ranjeet. The MLC records laceration 1.5 x 0.2 cm over left eye above eyebrow. The appellant retaliated. A wooden plank lying handy, was used as the handy object and one blow was struck on Padma's head. She started bleeding and fell down. She was removed to GTB Hospital by the appellant himself in the company of Prem Kumar. She expired the next day on January 21, 2013.

6. The post-mortem report Ex.PW-8/A establishes a solitary blow inflicted upon the head of Padma. Cause of death was shock resulting from ante-mortem injury to head by blunt force. I note that other injuries are stitch lacerated wounds, the result of a surgical intervention done to relieve the pressure caused by oedema.

7. The impugned decision correctly notes that the evidence deprobablizes any intention on the part of the appellant to kill Padma and that everything happened all of a sudden in the heat of the moment during a

quarrel. The decision attributes knowledge to the appellant that by striking Padma on her head with a wooden phatta there was a likelihood of she dying and thus the conviction is for the offence punishable under Section 304-II IPC.

8. Unfortunately for me, the sketch of the wooden plank used by the appellant to hit Padma has not been prepared. Further problem is that no opinion from Dr.Arun Kumar PW-8 who conducted the post-mortem of the dead body of Padma has been obtained with reference to the wooden plank and thus I do not have the sketch of the wooden plank which would have been drawn by the doctor had the same been sent to him.

9. Be that as it may, either the wooden plank was heavy or if not weighty, was struck with considerable force because the post-mortem report shows extravasation of the blood on the left scalp and a linear fissure fracture skull volt and skull base.

10. Thus the conviction for the offence punishable under Section 304-II has rightly been returned. But on the issue of sentence which I note is to undergo RI for 5 years, I am of the opinion that the sentence needs to be tempered with compassion. Considering that the deceased aggravated the verbal quarrel by trying to claw the eye of the appellant and he reacted in rage, I am of the opinion that the ends of justice would be met if the appellant is sentenced to imprisonment for the period already undergone which I note would be 3 years, 5 months and 3 days as of today.

11. The appeal is accordingly disposed of affirming the verdict of guilt but reducing the sentence to suffer imprisonment for the period already undergone.

12. TCR be returned.

13. Since the appellant is in jail copy of this decision be sent to the Superintendent Central Jail Tihar for updating of the jail record and thereafter to be supplied to the appellant.

(PRADEEP NANDRAJOG) JUDGE

MAY 26, 2016 mamta